ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

SAMUEL CONTI, District Judge.

I. INTRODUCTION

Now before the Court is Defendant Wells Fargo Bank, N.A.'s ("Wells Fargo") motion for summary judgment. The motion is fully briefed,1 and the Court deems it suitable for disposition without oral argument pursuant to Civil Local Rule 7-1(b). For the reasons set forth below, Defendant Wells Fargo's motion for summary judgment is GRANTED.

II. BACKGROUND

A. Factual Background

This is a mortgage foreclosure case. Plaintiff Karthik Subramani obtained a $479,600 mortgage loan (the "Loan") from Defendant Wells Fargo on October 18, 2006, recorded by an adjustable-rate promissory note and secured by a deed of trust ("DOT") against residential real property in Livermore, California. The DOT states that Plaintiff agreed to repay the borrowed $479,600 or risk foreclosure, and that "[t]he Note or a partial interest in the note (together with this Security Instrument) can be sold one or more times without prior notice to [Plaintiff]." Wells Fargo was the original lender under the DOT, and Fidelity National Title Insurance Company ("FNTIC") was the original trustee.

Plaintiff alleges that Defendant first sold the Loan to Wells Fargo Asset Securities Corporation ("WFASC") sometime around October 24, 2006. Soon after that, WFASC allegedly bundled Plaintiff's Loan (consisting of the note and DOT) with other mortgages into a mortgage-backed securities pool, the Wells Fargo Mortgaged Backed Securities 2006-AR18 Trust, Mortgage Pass-Through Certificates, Series 2006-AR18 (the "WFMBS 2006-AR18 Trust"). The WFMBS 2006-ARIB Trust had been established on October 1, 2006 with the execution of a pooling and servicing agreement ("PSA").

On July 23, 2009, Plaintiff received a notice of default ("NOD") from First American Title Insurance Company acting as an agent for First American Loanstar Trustee Services ("First American Loanstar") as purported "Agent for the Current Beneficiary." Compl. Ex. B ("NOD 1").

On August 25, 2009, First American Loanstar, acting as "attorney in fact for [Defendant]," issued a Substitution of Trustee ("SOT 1"), substituting itself as trustee.

Plaintiff's first NOD was rescinded on September 10, 2010, but Plaintiff defaulted again, and a second NOD was recorded on May 10, 2011. The second NOD was issued on May 4, 2011, by LSI Title Company acting as agent for Federal National Title Company ("FNTC"). On May 6, 2011, between the issuance and recordation of the second NOD, Defendant issued a second Substitution of Trustee ("SOT 2") appointing FNTC as substitute trustee under the DOT. Three months later, on August 11, 2011, the second SOT was recorded.

Plaintiff did not cure his second default, and on August 11, 2011 — the same day the second SOT was recorded — FNTC, acting as trustee under the DOT, issued and caused recording of the Notice of Trustee Sale. A year later, on August 9, 2012, FNTC sold Plaintiff's Property in a foreclosure sale to non-party California Equity Management Group, Inc., and issued the Trustee's Deed Upon Sale ("TDUS") on August 15, 2012. Plaintiff contends that all of the legal documents described above were void because Defendant was no longer the valid lender in the DOT, or even an agent of a successor beneficiary, after it sold the Loan in 2006. According to Plaintiff, Defendant did not assign the DOT or endorse the note pursuant to the PSA. Nor did Defendant abide by California law regarding the endorsement, assignment, and recordation of notes and DOTs. Plaintiff therefore states that after Defendant sold the Loan, neither Defendant nor anyone else had any right to or interest in the Loan, so all legal notices associated with the note and DOT — including the SOTs, NODs, and the foreclosure sale itself — are illegal and void.

B. Procedural History

Plaintiff has twice amended his complaint, and Defendants have twice moved to dismiss. See ECF Nos. 24 ("FAC"), 25 ("MTD FAC"), 35 ("SAC"), 36 ("MTD SAC"). At this point, the Court has dismissed with prejudice Plaintiff's claims for constructive fraud, violation of the Truth in Lending Act ("TILA"), declaratory relief, and under California Civil Code section 2934(a)(1)(A). The Court also dismissed with prejudice Plaintiff's claims under the unfair and unlawful prongs of California's Unfair Competition Law ("UCL"). See ECF Nos. 33 ("MTD FAC Order"), 44 ("MTD SAC Order").

Four causes of action remain: Plaintiff's wrongful foreclosure, cancellation of instruments, unjust enrichment, and UCL fraud claims. See MTD FAC Order at 18, MTD SAC Order at 8-9. The wrongful foreclosure, cancellation of instruments, and unjust enrichment claims are all premised on the argument that Wells Fargo sold the Loan and has no interest through which it may foreclose on Plaintiff's home. See SAC ¶¶ 77-81, 95-97, 98-100.

III. LEGAL STANDARD

Entry of summary judgment is proper "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). Summary judgment should be granted if the evidence would require a directed verdict for the moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251 (1986). "A moving party without the ultimate burden of persuasion at trial — usually, but not always, a defendant — has both the initial burden of production and the ultimate burden of persuasion on a motion for summary judgment." Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Cos., Inc., 210 F.3d 1099, 1102 (9th Cir. 2000).

"In order to carry its burden of production, the moving party must either produce evidence negating an essential element of the nonmoving party's claim or defense or show that the nonmoving party does not have enough evidence of an essential element to carry its ultimate burden of persuasion at trial." Id. "In order to carry its ultimate burden of persuasion on the motion, the moving party must persuade the court that there is no genuine issue of material fact." Id. "The evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson, 477 U.S. at 255. However, "[t]he mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff." Id. at 252.

IV. DISCUSSION

Plaintiff's claims all revolve around his assertion that Wells Fargo sold its interest in the Loan and therefore does not have standing to foreclose on the loan. Plaintiff makes a brief, secondary argument that the foreclosure was invalid because the second NOD named FNTC as trustee, but FNTC was not substituted as trustee until months later. The Court begins by discussing the substance of those allegations, determining that Plaintiff lacks evidence to support the first and that the second is insufficient to support any of his causes of action. Then the Court assesses the effect of those holdings on each of Plaintiff's claims.

A. Wells Fargo's Interest in the Loan

It is undisputed that Plaintiff initially obtained the Loan from Wells Fargo in October 2006. See SAC ¶ 10; ECF No. 69 ("RJN") Ex. A. Plaintiff alleges that "shortly after loan closing . . . [Wells Fargo] irrevocably sold the Plaintiff's mortgage loan . . . to `Depositor' WELLS FARGO ASSET SECURITIES CORPORATION." SAC ¶ 14.

1. Evidence That Wells Fargo Retained its Interest in the Loan

There are, however, a number of reasons to believe that Wells Fargo did not sell its interest in the Loan at that time. In August of 2010, Plaintiff entered into a loan modification agreement with Wells Fargo. ECF No. 70 ("Grewal Decl.") Ex. C ("Subramani Depo.") at 46:8-47:18. Plaintiff claims that he entered into the modification agreement despite his belief that Wells Fargo was no longer the beneficiary of the DOT. See Subramani Depo. at 47:6-48:19. However, when Plaintiff filed a bankruptcy petition in December 2010, he listed Wells Fargo as the mortgagee on his home loan and certified that the information he provided was correct under penalty of perjury. RJN Ex. D at 14, 24.

The deed of trust, both notices of default, the rescission of declaration of default, the substitution of trustee, and notice of trustee's sale all list Wells Fargo as the beneficiary. See RJN Ex. A at 1, Ex. B at 2, Ex. C at 1, Ex. F at 2, Ex. G at 1, Ex. H at 1.2 Those documents cover a period from the initiation of the Loan in October 2006 through the trustee's sale in August of 2011, and all suggest that Wells Fargo was the beneficiary of the DOT throughout that period. Wells Fargo was the only entity that ever attempted to foreclose on the loan and Plaintiff never made payments on the Loan to any other person. Subramani Depo. at 49:4-22; Grewal Decl. Ex. A at 2. Finally, Wells Fargo's Vice President of Loan Documentation has submitted a declaration stating that she has personal knowledge of Wells Fargo's records of Plaintiff's loan. See ECF No. 71 ("Mulder Decl.") ¶¶ 1-3. She states that Wells Fargo never transferred its beneficial interest in the loan nor sold Plaintiff's debt. Id. ¶ 12.

Plaintiff's contention is that all of the documents Wells Fargo provides are fraudulent, and he attacks Ms. Mulder's declaration for being insufficiently detailed. See Opp'n at 5-6. Neither of those contentions changes the fact that Wells Fargo has exceeded its burden (as a moving party that does not bear the burden of proof at trial) of production for this motion. Wells Fargo has submitted significant evidence that it was the beneficiary of the DOT and mortgagee on the Loan throughout the relevant time period. Absent some contradictory evidence, the Court must find that no genuine dispute of material fact exists as to whether Wells Fargo sold its interest in the loan.

2. Evidence that Wells Fargo Sold its Interest in the Loan

The only evidence Plaintiff offers in support of his claim that Wells Fargo transferred its beneficial interest is the expert opinion of Lawrence Asuncion. Mr. Asuncion has a degree in economics and was a businessman for many years. See Opp'n Ex. A ("Asuncion Rpt.") at 3-4. He styles himself as a "forensic mortgage loan auditor," and he is now the Chief Forensic Securitization Audit and Mortgage Fraud Analyst for Certified Securitization Analysis. Id. Mr. Asuncion claims "over four thousand hours of research and study in the areas of the Truth in Lending Act ('TILA'), the Fair Debt Collection Practices Act ('FDCPA'), the Fair Credit Reporting Act ('FCRA'), Foreclosure Litigation, Asset-Backed Securitization and its effects and applications in Foreclosure and Loss Mitigation" during the past four years. Asuncion Rpt. at 3. Mr. Asuncion does not specify how his "research and study" was divided among the topics he lists, nor does he provide any indication of where his study occurred or whether it was supervised. He has "completed and certified hundreds of Securitized Analysis Reports in residential real estate mortgage investigation" and claims familiarity with "industry standards, customs, practices and legal requirements of debt instruments and mortgage loan securitizations." Id. He lists no professional certifications or publications. Mr. Asuncion offers an expert opinion that Wells Fargo sold the Loan to HSBC USA, National Association shortly after it was executed. Asuncion Rpt. at 24, 28; ECF No. 79 ("Asuncion Decl.") ¶ 3. According to Mr. Asuncion, Wells Fargo sold Plaintiff's loan as part of a securitization process that pooled a large number of mortgages together and transferred them to other entities.

Wells Fargo argues that Mr. Asuncion's opinion is inadmissible. Federal Rule of Evidence 702 permits an expert qualified by knowledge, skill, experience, training, or education to testify in the form of an opinion if (1) his scientific, technical, or other knowledge will be helpful to the trier of fact; (2) the testimony is based on sufficient facts or data; (3) the testimony is the product of reliable principles and methods; and (4) the expert has reliably applied the principles and methods to the facts of the case. The Supreme Court has established a two-part test for determining the admissibility of expert testimony: (1) the trial court must make a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue; and (2) the court must ensure that the proposed expert testimony is relevant and will serve to aid the trier of fact. See United States v. Finley, 301 F.3d 1000, 1008 (9th Cir. 2002) (describing the two-part step established in Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993)).

Wells Fargo argues at the outset that Mr. Asuncion cannot be qualified as an expert under Rule 702. According to Wells Fargo, Mr. Asuncion's 4,000 hours of research and study over the past four years are insufficient to qualify him as an expert. The Court is inclined to agree; Mr. Asuncion's background does not demonstrate expertise on any matter relevant to this case. Indeed, the undersigned has previously excluded Mr. Asuncion's opinion that a certain loan was securitized based on similar objections. See ECF Nos. 14-1, 27, Santos v. Bank of America, N.A., No. 3:12-cv-01538-SC (N.D. Cal. 2012). In this case, however, the clearest basis for excluding Mr. Asuncion's opinion is that it is neither based on sufficient facts and data nor was it reached using reliable methodology.

Mr. Asuncion's methodology, to the extent it is discernible from his report (which is rather opaque), was apparently to search through Wells Fargo's SEC filings related to a mortgage loan purchase agreement from around the time the Loan was executed. See Asuncion Rpt. at 10-11, Ex. 1 at 80-94; Asuncion Decl. at 2. Mr. Asuncion claims to have "established a match within the range and parameters of the 1,130 mortgage loans pooled under Loan Group I of the securitization trust. . . ." Asuncion Rpt. at 12. Mr. Asuncion never explains exactly what that means. From his report and attached exhibits, it appears that Mr. Asuncion examined the SEC filings, which specify certain characteristics of the loans bundled in the securitization. For each characteristic, such as the origination date of the loan, the purpose of the loan, the interest rate, the maximum interest rate, the date to the first adjustment, and the size of the loan, Mr. Asuncion found some number of loans with the same characteristics as the Loan at issue in this case. In other words, Mr. Asuncion has found that, in 2006, Wells Fargo securitized some number of loans with similar characteristics to the Loan at issue here.

There a number of rather obvious problems with this approach. The first is that it does not necessarily tell us anything about Plaintiff's loan at all. The fact that Wells Fargo securitized a number of loans, some of which shared certain characteristics with Plaintiff's, around the time that Plaintiff's loan was executed does not mean that Plaintiff's loan was securitized. Second, it is unclear how Mr. Asuncion selected the certain loan pooling agreement he examined. Third, Plaintiff provides no support whatsoever for his inference that Plaintiff's loan must have been one of the loans with similar characteristics that was included in the securitization agreement. Plaintiff's search results themselves demonstrate that multiple loans match each of his search criteria. Fourth, it is unclear from the report that Plaintiff's data permits him to determine whether multiple parameters apply to the same loan or loans. For example, Mr. Asuncion's data appear to reveal that Group I included 45 loans with 360 months remaining to maturity, and 193 loans with original principal balances in the range of $450,001 to $500,000 (both of which "matched" Plaintiff's loan). But Mr. Asuncion's report does not demonstrate whether or how he determined how many loans both had 360 months to maturity and an original principal balance in that range. There is simply no explanation for his conclusion that Plaintiff's loans must have been one of the similar loans securitized in 2006. In fact, from the data in the report alone, there does not appear to be any conclusive evidence that any of the loans included in the securitization agreement matched Plaintiff's loan for all parameters. Even if Mr. Asuncion had such information, he never provides support for his assumption that one of the loans with matching parameters was Plaintiff's loan.

The best way to phrase Mr. Asuncion's findings is this: he discovered that Wells Fargo securitized a large number of loans in 2006, many of which shared certain characteristics with Plaintiff's loan. That fact simply does not support a conclusion that Wells Fargo securitized Plaintiff's loan, much less a conclusion that Wells Fargo sacrificed any beneficial interest in the Loan.

Accordingly, the Court SUSTAINS Wells Fargo's objection to Mr. Asuncion's opinion. The Court finds that Mr. Asuncion's opinion is neither reached through reliable methodology nor based on sufficient facts and data. Searching the records of a securitization agreement for loans with similar characteristics is not a reliable method of determining whether any particular given loan was sold as part of that agreement.3

3. Conclusion

The Court finds that Wells Fargo has met both its burden of production and burden of persuasion on this issue. It is undisputed that Wells Fargo was the initial mortgagee, and Wells Fargo has provided sufficient evidence suggesting that it never transferred its beneficiary interest in the Loan. Plaintiff, who would bear the burden of proof at trial, has no evidence at all that Wells Fargo ever transferred the Loan. As a result, the Court finds that there is no genuine issue of material fact: Wells Fargo retained its beneficial interest in the Loan and DOT through the foreclosure sale.

B. Substitution of Trustee

Wells Fargo substituted Fidelity National Title Company ("FNTC") as the trustee under the deed of trust (for First American LoanStar Trustee Services, LLC) on August 11, 2011. See RJN Ex. G. However, the second notice of default was executed on May 4, 2011 (and recorded on May 10) and specified FNTC as the trustee. Plaintiff argues that, the second notice of default "is fraudulent, null and void" because it preceded the substitution of trustee. Opp'n at 13-14. Plaintiff argues that the second notice of default was executed by, and the ensuing foreclosure sale was conducted by, a trustee that was not duly substituted. See Opp'n at 9-10.

The California Court of Appeal has already addressed this issue. In Ram v. OneWest Bank, FSB, the court faced a scenario in which a notice of default identified Aztec Foreclosure Corporation ("Aztec") as the trustee. 183 Cal.Rptr.3d 638, 641 (Cal. Ct. App. 2015). However, the beneficiary did not execute a substitution of trustee to name Aztec as the trustee until several weeks later. Id. The court held that the beneficiary had "complied with the procedure authorized by the Legislature" and that the "supposed defect" could not "form the basis for rendering the ensuing trustee's sale not just voidable, but absolutely void." Id. at 646.4

Moreover, the Ram court made clear that even if prematurely naming an incorrect trustee did constitute a procedural irregularity, it would be unlikely to cause prejudice. "The primary purpose of a notice of default is to provide notice of the amount in arrears and an opportunity to cure the default. In order for a defect in the notice of default to be material, it must cause prejudice." Id. at 649 (internal citations omitted). Plaintiff has not identified any reason that naming FNTC as the trustee before FNTC was duly substituted as the trustee caused him any prejudice at all. Ram is directly on point: the fact that FNTC was not substituted as trustee until after the notice of default was recorded cannot serve as basis for Mr. Subramani's challenge to the foreclosure. "[T]he recorded substitution of trustee constituted conclusive evidence that [FNTC] had the authority to conduct the trustee's sale and to convey title to [Mr. Subramani's] home to the highest bidder, even if the notice of default was improperly signed and recorded by [FNTC] before it became trustee." See id. at 647.

C. Mr. Subramani's Claims

1. Wrongful Foreclosure

The elements or a wrongful foreclosure claim are: "(1) the trustee or mortgagee caused an illegal, fraudulent, or willfully oppressive sale of real property pursuant to a power of sale in a mortgage or deed of trust; (2) the party attacking the sale . . . was prejudiced or harmed; and (3) in cases where the trustor or mortgagor challenges the sale, the trustor or mortgagor tendered the amount of the secured indebtedness or was excused from tendering." Lona v. Citibank, N.A., 134 Cal.Rptr.3d 622, 633 (Cal. Ct. App. 2011). Plaintiff alleges that the foreclosure sale in this case was illegal and fraudulent because Wells Fargo lacked the authority to foreclose on the property. According to Plaintiff, Wells Fargo's lack of authority stems from the alleged transfer of its beneficial interest in the Loan to a "true unknown beneficiary." See SAC ¶¶ 77-81. Because the Court finds that there is no evidence that Wells Fargo ever transferred its beneficial interest in the Loan, Plaintiff has no evidence of the first element of this claim. Thus, there is no genuine dispute of material fact as to whether the foreclosure was illegal, fraudulent, or willfully oppressive. Wells Fargo's motion is GRANTED as to the wrongful foreclosure claim.

2. Cancellation of Instruments

California Civil Code Section 3412 permits cancellation of "[a] written instrument, in respect to which there is a reasonable apprehension that if left outstanding it may cause serious injury to a person against whom it is void or voidable." Once again, this claim is premised on Plaintiff's assumption that Wells Fargo transferred its beneficial interest in the Loan. See SAC ¶¶ 95-96. Plaintiff's legal theory is that the deed of trust and foreclosure documents are void "as a result of the bungled securitization and the Defendants acting without any legal standing and authority from the unknown beneficiary. . . ." Id. ¶ 95. Because Plaintiff has no evidence that the "bungled securitization" ever occurred, he cannot show that a genuine dispute as to a material fact exists. This claim, too, must fail. Wells Fargo's motion for summary judgment is GRANTED as to the cancellation of instruments cause of action.

3. Unjust Enrichment

"The elements of an unjust enrichment claim are the `receipt of a benefit and [the] unjust retention of the benefit at the expense of another.'" Peterson v. Cellco P'ship, 164 Cal.App.4th 1583, 1593 (Cal. Ct. App. 2008). Plaintiff alleges that Wells Fargo unjustly retained his mortgage payments. The basis for that claim is, again, that Wells Fargo "collected mortgage payments from the Plaintiff for years after it sold the loan." Opp'n at 14. Because there is no evidence that Wells Fargo ever sold the Loan, Wells Fargo's motion for summary judgment is GRANTED as to this claim as well.

4. UCL Fraud

Plaintiff's UCL fraud claim includes a litany of Defendants' allegedly fraudulent practices. See id. ¶ 109. Strangely, the operative complaint alleges that Wells Fargo perpetrated these fraudulent practices, causing "substantial harm to California consumers." Id. ¶ 112. It is, therefore, unclear whether Plaintiff alleges that Wells Fargo perpetrated all of these practices against him. Many of the claims are not adequately supported by factual allegations in the complaint. It is clear that, at least to some extent, Plaintiff's UCL claim is based on the same alleged sale of the Loan as his other claims. Some of the behavior he cites includes "[e]xecuting and recording false and misleading documents; and . . . [a]cting as beneficiaries and trustees without the legal authority to do so." Id. ¶ 109. In his opposition brief, Plaintiff clarifies that "[t]he basis of Plaintiff's claim is that Wells Fargo fraudulently continues to assert rights under Plaintiff's note and deed of trust notwithstanding the fact that it sold the mortgage loan in 2006." Opp'n at 14-15. Because that is the basis of Plaintiff's UCL claim, and because the Court has determined that Plaintiff has no evidence that the Loan was sold in 2006, the Court finds that summary judgment is warranted on this claim as well. Wells Fargo's motion is GRANTED as to Plaintiff's UCL claim.

V. CONCLUSION

For the reasons set forth above, Defendant Wells Fargo's motion for summary judgment is GRANTED with respect to all of Plaintiff Karthik Subramani's remaining causes of action.

IT IS SO ORDERED.