Zervas v. Wells Fargo Bank, N.A.

The Zervases (defendants) bought property with a loan from Fremont, secured by a mortgage with a standard acceleration clause requiring 30 days' notice and a chance to cure before foreclosure. After they stopped paying in June 2009, Wells Fargo (plaintiff) sued in October 2009, generally alleging it had met all conditions precedent but never specifically showing compliance with the acceleration clause. The bank first claimed it had lost the note and did not produce it (bearing Fremont's blank endorsement) until July 2010. The trial court granted the bank summary judgment on August 2, 2010. Ten days later the Zervases answered and moved to set aside the judgment, arguing the bank had not shown compliance with the acceleration clause or standing to sue. They appealed the summary judgment.

Whether a plaintiff in a judicial foreclosure is entitled to summary judgment only when no answer the defendant might file could possibly present a genuine issue of material fact.