Millari v. JP Morgan Chase Bank, N.A. CA1/2 ( 2015 )

Filed 10/13/15 Millari v. JP Morgan Chase Bank, N.A. CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
HONORIO R. MILLARI,
Plaintiff and Appellant,
A142272
v.
JP MORGAN CHASE BANK, N.A., (San Mateo County
Super. Ct. No. CIV518086)
Defendant and Respondent.
Appellant Honorio Millari appeals from the judgment entered following the
sustaining without leave to amend of the demurrer to his second amended complaint, a
complaint filed in the fourth separate action brought by Millari. Millari’s appellate briefs
do not address any of the 10 causes of action he attempted to allege in the three
complaints in this action, contenting himself with this one argument: the demurrer “was
sustained without lawful and valid evidence that respondents are the lawful beneficiary of
the original lender.” We affirm.
BACKGROUND
In April 2005, Millari obtained a $566,400 loan from Advantage Home Finance
(AHF). The note was secured by a deed of trust encumbering the property at 400 Edna
Lane, Pacifica (the property). The trustee on the deed of trust was Alliance Title
Company (Alliance), which recorded the deed of trust in the official records of San
Mateo County on April 22, 2005. The note and deed of trust were among the exhibits
attached to Millari’s complaint, and as pertinent here, the deed of trust provided as
follows: “24. Substitute Trustee. Lender, at its option, may from time to time appoint a
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successor trustee to any Trustee appointed hereunder . . . . Without conveyance of the
Property, the successor trustee shall succeed to all the title, powers and duties conferred
upon the Trustee herein and by Applicable law.”
Sometime in 2008, Millari defaulted on his loan, a fact he admits. In November
2008, California Reconveyance Company (CRC), successor trustee, recorded a notice of
default and election to sell (notice of default), which stated that Millari was over $53,000
in arrears as of November 21, 2008. Thereafter, CRC recorded six notices of trustee’s
sale between April 2009 and January 2013. Meanwhile, beginning in January 2011,
Millari filed three predecessor actions to this case, actions described in Millari’s own
words as follows:
“10. Pro se Plaintiff filed a verified complaint for Money Damages and Civil
RICO against JP MORGAN and others in the U.S. District Court for the Northern
District of California on January 20, 2011 under Case No. CV-11 02950 SI . . . . In an
order filed on April 18, 2011, the Court granted plaintiff an extension of time until
May 20, 2011, to file an amended complaint. Because the Plaintiff was not able to file an
amended complaint, . . . the court dismissed the case without prejudice for failure to
prosecute on July 8, 2011.
“11. On August 8, 2011, pro per Plaintiff filed a civil complaint against JP
MORGAN and others with the Superior Court of California, County of San Mateo under
Case No. CIV 507511. . . . On October 7, 2011, Defendants filed a . . . demurrer . . . . The
hearing regarding the demurrer to Plaintiff’s complaint was scheduled on February 1,
2012. Plaintiff filed a request to reschedule the hearing so a legal counsel may properly
represent Plaintiff . . . . The Court rescheduled the hearing but the Plaintiff was unable to
retain his attorney in time to meet the deadlines set by the Court. On April 24, 2012,
Plaintiff voluntarily dismissed his case without prejudice.
“12. On June 4, 2012, with the belief that the Federal Court has jurisdiction
because the amount in controversy exceeds $75,000 with the diversity among the parties
to this case and certain violations of the Real Estate Settlement Procedures Act (RESPA),
12 USC § 2601 et seq., Plaintiff’s counsel filed a complaint to quite [sic] title, for
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declaratory and injunctive relief, cancellation of instruments, fraud and unjust enrichment
against Defendants JP MORGAN et al. with the U.S. District Court for Northern District
of California under Case No. 12-28760SC. Without addressing the merits of the action,
the Court dismissed the case without prejudice for lack of subject matter jurisdiction on
October 3, 2012.”
On November 19, 2012, again represented by counsel, Millari filed his complaint
in this action, naming four defendants: JP Morgan Chase Bank (Chase), CRC, AHF, and
Alliance. The complaint alleged six causes of action, styled as follows: (1) quiet title;
(2) declaratory relief; (3) injunction; (4) cancellation of instruments; (5) fraud; and (6)
unjust enrichment.
On March 7, 2013, Chase and CRC filed a demurrer to all causes of action,
accompanied by a request for judicial notice, seeking judicial notice of 11 documents
from the County of San Mateo Recorder’s Office.
On June 20, 2013, before the hearing on the demurrer, Millari filed a first
amended complaint (FAC). The FAC eliminated two originally named defendants, AHF
and Alliance, and added a new named defendant, identified by Millari as: “Deutsche
Bank National Trust Company as Trustee for the Long Beach Mortgage Loan Trust
2005-WL2, Asset-Backed Certificates, Series 2005-WL2” (Deutsche Bank). The FAC
asserted 10 causes of action: (1) wrongful foreclosure; (2) quiet title; (3) slander of title;
(4) fraud; (5) cancellation of instruments; (6) violation of Civil Code section 2924.17; (7)
violation of Civil Code section 2934, subdivision (a)(1)(A); (8) violation of Business and
Professions Code section 17200, et seq. (section 17200); (9) negligence; and (10) unjust
enrichment.
The three named defendants filed a demurrer on July 23, 2013, set for hearing on
October 8. Millari failed to timely oppose the demurrer, and defendants filed a reply
brief noting that non-opposition. Millari filed a belated opposition on October 3, to
which defendants filed a supplemental reply on October 4.
The demurrer to the FAC came on for hearing as scheduled, prior to which the
court had issued a tentative ruling. Following a brief hearing, the court filed its order
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adopting the tentative ruling, which sustained without leave to amend the demurrer as to
seven of the 10 causes of action: the second (quiet title), third (slander of title), fourth
(fraud), fifth (cancellation of instruments), sixth (violation of Civil Code section
2924.17), ninth (negligence), and tenth (unjust enrichment). The court granted Millari
leave to amend as to the first (wrongful foreclosure), seventh (violation of Civil Code
section 2934, subdivision (a)(1)(A)), and eighth (violation of Business and Professions
Code section 17200) causes of action.
On January 8, 2014, Millari filed a second amended complaint (SAC) which
purported to allege four causes of action, for: (1) wrongful foreclosure; (2) constructive
fraud; (3) violation of Civil Code section 2924.17 and violation of Civil Code section
2934, subdivision (a)(1)(A)1; and (4) violation of Business and Professions Code section
17200.
On February 7, 2014, defendants filed a demurrer to the SAC, along with another
request for judicial notice. The request again sought notice of the 11 documents from the
recorder’s file which, among other things, showed the following:
-- Millari obtained a residential loan in the amount of $566,400.00 secured by a
deed of trust encumbering the property, which was recorded on April 22, 2005 with the
San Mateo County Recorder’s Office. The deed of trust identifies AHF as the lender,
Millari as the borrower, and Alliance as the trustee.
-- On September 25, 2008, the Federal Deposit Insurance Corporation and Chase
entered into a purchase and assumption agreement in which Chase acquired all “servicing
rights and obligations” of Washington Mutual Bank.
-- On November 24, 2008, CRC recorded an assignment of the deed of trust, by
which Chase assigned the deed of trust to Deutsche Bank, as trustee for Long Beach
Mortgage Loan Trust 2005-WL2.
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The SAC contained two sections labeled as the “third” cause of action, the first
labeled “Count III: Violation of Cal. Civ. Code Section 2924.17” and the second labeled
“Count III: Violation of Cal. Civ. Code Section 2934(a)(1)(A).”
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-- On November 24, 2008, Deutsche Bank recorded a substitution of trustee
naming CRC as trustee under the deed of trust.
-- On November 24, 2008, CRC recorded a notice of default and election to sell
the property in the San Mateo County Recorder’s Office.
-- Between April 2009 and January 2013, CRC recorded six separate notices of
trustee’s sale with the San Mateo County Recorder’s Office.
On February 11, 2014, defendants also filed a motion to strike the allegations
relating to the second (constructive fraud) and third (Civil Code section 2924.17) causes
of action in the SAC on the ground that the court had previously sustained their demurrer
to these causes of action without leave to amend.
The demurrer and motion to strike came on as scheduled, on March 26, 2014,
again against the background of the court having issued a tentative ruling. The hearing
was brief, and included Millari’s counsel saying that “[w]e accept the court’s tentative
ruling with the exception of the first cause of action, the wrongful foreclosure cause of
action.” Millari’s counsel went on as follows:
“The court’s basis for the ruling was that it was the Fontenot case. And we
believe that Fontenot is not applicable in this case, it was totally dissimilar, the facts are
not the same as in this case, and that the Glaski versus Bank of America case should be
adopted.
“The plaintiffs here want to pay the real party in interest, and they are not sure
exactly who to pay. The defendant has never shown the documents that they are entitled
to be paid. So Fontenot is not applicable.
“Also, the defendants have contended that plaintiff may not assert a claim for
wrongful foreclosure because a sale has not occurred. But the cases that are cited are
inapplicable in this case and that the borrower does have the right to bring a wrongful
foreclosure action against the ledger for no foreclosure sale has taken place when the
borrower has articulated the specific factual basis for challenging the authority to
foreclose.
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“So we would ask the court to look at the—I can cite some of the cases if you
would like.
“THE COURT: No. I am familiar with the cases, but thank you for that.”
Counsel for defendants argued briefly, concluding as follows:
“[P]laintiff cites Glaski, and it’s worth noting that plaintiff’s arguments on Glaski
in his second amended complaint was within the cause of action for fraud which was
subject to our motion to strike and was previously dismissed by the court on our last
amended complaint.
“Furthermore, Glaski is not the appropriate case here, and we cited numerous
cases which refute the holding in Glaski, and it’s really not applicable here.
“Fontenot, Silga, Herrera, and Dick versus American Home Mortgage, those cases
all show that a wrongful foreclosure case cannot stand when the plaintiff has not alleged
prejudice. And he has not done so, and this is his third chance at articulating a claim.
“So it would be our position that not only should a demurrer be granted but
plaintiff should not be given any other chance to amend the pleading. He has had
numerous chances.
“The second amended complaint ignores the previous orders of this court and also
ignores an argument that was raised in our previous demurrers and our reply briefs and in
our current demurrer to the second amended complaint.”
The court concluded as follows:
“I have consistently found that the Glaski case—and the cite for that is Glaski
versus Bank of America, 218 Cal. App. 4th 1079, a 2013 California Court of Appeal
case—is not rationale that I have followed in handling these types of issues nor have the
majority of courts in California. It is a minority opinion. It has been roundly rejected by
a majority of courts in this state.
“I found more persuasive Jenkins versus JP Morgan Chase Bank, 216 Cal. App. 4th
497, another 2013 case, as well as the arguments set forth in defendant’s motion.
“So the tentative is adopted.
“And the moving party shall submit an order to the court for signature.”
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A comprehensive formal order was thereafter filed that analyzed the remaining
counts that had not earlier been dismissed, which order read in pertinent part as follows:
“Demurrer is sustained without leave to amend as to Count I (wrongful
foreclosure) and the second Count III (violation of Civil Code section 2934). Plaintiff
fails to allege any prejudice in that the complaint still does not allege that the transfer of
the Deed of Trust and Subject Loan interfered in any manner with his ability to pay the
note. (Fontenot v. Wells Fargo Bank (2011) 198 CalApp4th 256, 272.) The amendments
to Count I do not cure the defect (See 2nd. Am. Comp. ¶ 84-86). Count III is unchanged
from the previous deficient pleading. As such, the same reasoning underlying the
sustaining of the initial demurrer applies equally here, as nothing significantly has been
added to the FAC which cures the defects addressed in the Court’s ruling of October 8,
2013[.]
“Demurrer is sustained without leave to amend as to Count IV, Business &
Professions Code Section 17200. The claim under Business and Professions Code still
fails to allege standing in the form of any economic injury-in-fact. (Californians for
Disability Rights v. Mervyn’s, LLC (2006) 39 Cal. 4th 223, 228; Kwikset Corp. v. Super.
Ct. (2011) 51 Cal. 4th 310, 322.) To date, no foreclosure sale has occurred, and Plaintiff
is still in possession of the property. Moreover, no unfair practice is sufficiently alleged.”
The order also granted the motion to strike Count II (constructive fraud) and the
first Count III (violation of Civil Code section 2923.17), noting as follows: “The Court
sustained demurrer to both causes of action without leave to amend. Both counts are
improper in the present amended pleading.”
Judgment of dismissal followed, from which Millari filed a notice of appeal.
DISCUSSION
The Standard of Review
“Because this case comes to us on a demurrer for failure to state a cause of action,
we accept as true the well-pleaded allegations in plaintiff’s . . . amended complaint.
‘ “We treat the demurrer as admitting all material facts properly pleaded, but not
contentions, deductions or conclusions of fact or law. [Citation.] We also consider
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matters which may be judicially noticed.” [Citation.] Further, we give the complaint a
reasonable interpretation, reading it as a whole and its parts in their context. [Citation.]’
[Citation.] ‘ “[A] complaint otherwise good on its face is subject to demurrer when facts
judicially noticed render it defective.” [Citation.]’ [Citations.]” (Evans v. City of
Berkeley (2006) 38 Cal. 4th 1, 6.) “ ‘However, we . . . may disregard any allegations that
are contrary to the law or to a fact of which judicial notice may be taken.’ ” (Das v. Bank
of America, N.A. (2010) 186 Cal. App. 4th 727, 734; Total Call Internat., Inc. v. Peerless
Ins. Co. (2010) 181 Cal. App. 4th 161, 166.)
“While the decision to sustain or overrule a demurrer is a legal ruling subject to de
novo review on appeal, the granting of leave to amend involves an exercise of the trial
court’s discretion. [Citations.] When the trial court sustains a demurrer without leave to
amend, we must also consider whether the complaint might state a cause of action if a
defect could reasonably be cured by amendment. If the defect can be cured, then the
judgment of dismissal must be reversed to allow the plaintiff an opportunity to do so.
The plaintiff bears the burden of demonstrating a reasonable possibility to cure any defect
by amendment. [Citations.] A trial court abuses its discretion if it sustains a demurrer
without leave to amend when the plaintiff shows a reasonable possibility to cure any
defect by amendment. [Citations.] If the plaintiff cannot show an abuse of discretion, the
trial court’s order sustaining the demurrer without leave to amend must be affirmed.
[Citation.]” (Traders Sports, Inc. v. City of San Leandro (2001) 93 Cal. App. 4th 37, 43–
44.)
Millari’s plaintiff’s “burden of demonstrating a reasonable possibility to cure any
defect” is not pro forma. “ ‘To satisfy that burden on appeal, a plaintiff “must show in
what manner he can amend his complaint and how that amendment will change the legal
effect of his pleading.” [Citation.] . . . The plaintiff must clearly and specifically set forth
. . . factual allegations that sufficiently state all required elements of that cause of action.
[Citations.] Allegations must be factual and specific, not vague or conclusionary.’ ”
(Rossberg v. Bank of America, N.A. (2013) 219 Cal. App. 4th 1481, 1491 (Rossberg),
quoting Rakestraw v. California Physicians’ Service (2000) 81 Cal. App. 4th 39, 43–44.)
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The Legal and Statutory Framework
“ ‘The financing or refinancing of real property in California is generally
accomplished by the use of a deed of trust.’ [Citation.] ‘A deed of trust . . . conveys title
to real property from the trustor-debtor to a third party trustee to secure the payment of a
debt owed to the beneficiary-creditor under a promissory note. [Citations.] The
customary provisions of a valid deed of trust include a power of sale clause, which
empowers the beneficiary-creditor to [foreclose] on the real property security if the
trustor-debtor fails to pay back the debt owed under the promissory note. [Citations.]’
[Citation.] [¶] . . .
“When a trustor-debtor defaults ‘on a debt secured by a deed of trust, the
beneficiary-creditor may elect to judicially or nonjudicially foreclose on the real property
security. . . . ‘To initiate the nonjudicial foreclosure process, the “trustee, mortgagee, or
beneficiary, or any of their authorized agents,” must record a notice of default and
election to sell. [Citation.]’ [Citation.] The ‘mortgagee, trustee, or other person
authorized to take the sale’ must then wait three months before proceeding with the sale.
([Civ. Code] § 2924, subd. (a)(3); [Citation].) ‘After the three-month period has elapsed,
a notice of sale must be published, posted, recorded and mailed 20 days before the
foreclosure sale.’ [Citation.] The property must be sold at a public auction to the highest
bidder, but before the sale occurs the statutory scheme provides the trustor-debtor with
several opportunities to cure the default and avoid losing the property. [Citation.]
“The statutory scheme authorizing nonjudicial foreclosures ‘ “ ‘cover[s] every
aspect of [the] exercise of [a] power of sale contained in a deed of trust.’ [Citation.] . . .”
[Citation.]’ [Citation.]” (Rossberg, supra, 219 Cal. App. 4th 1481, 1491–1492, quoting
Jenkins v. JPMorgan Chase Bank, N.A. (2013) 216 Cal. App. 4th 497, 507–509 (Jenkins).)
“ ‘Because of the exhaustive nature of this scheme, California appellate courts have
refused to read any additional requirements into the non-judicial foreclosure statute.’ ”
(Gomes v. Countrywide Home Loans, Inc. (2011) 192 Cal. App. 4th 1149, 1154 (Gomes).)
Siliga v. Mortgage Electronic Registration Systems, Inc. (2013) 219 Cal. App. 4th
75 (Siliga) synthesized much of this, as follows:
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“ ‘California’s nonjudicial foreclosure scheme is set forth in Civil Code sections
2924 through 2924k, which “provide a comprehensive framework for the regulation of a
nonjudicial foreclosure sale pursuant to a power of sale contained in a deed of trust.”
(Moeller v. Lien (1994) 25 Cal. App. 4th 822, 830 (Moeller).) “These provisions cover
every aspect of exercise of the power of sale contained in a deed of trust.” (I. E.
Associates v. Safeco Title Ins. Co. (1985) 39 Cal. 3d 281, 285.) “The purposes of this
comprehensive scheme are threefold: (1) to provide the creditor/beneficiary with a quick,
inexpensive and efficient remedy against a defaulting debtor/trustor; (2) to protect the
debtor/trustor from wrongful loss of the property; and (3) to ensure that a properly
conducted sale is final between the parties and conclusive as to a bona fide purchaser.”
(Moeller, at p. 830.) . . .
“California courts have refused to allow trustors to delay the nonjudicial
foreclosure process by pursuing preemptive judicial actions challenging the authority of a
foreclosing ‘beneficiary’ or beneficiary’s ‘agent.’ (Jenkins v. JPMorgan Chase Bank,
N.A. (2013) 216 Cal. App. 4th 497, 511 (Jenkins); Gomes, supra, 192 Cal.App.4th at pp.
1154–1156 & fn. 5.) Such an action is ‘preemptive’ if the plaintiff alleges no ‘specific
factual basis’ for the claim that the foreclosure was not initiated by the correct person.
(Jenkins, supra, at p. 512, italics omitted.) A preemptive suit does not seek a remedy for
specified misconduct in the nonjudicial foreclosure process, which may provide a basis
for a valid cause of action. Instead, a preemptive suit seeks to create an additional
requirement for the foreclosing party, apart from the comprehensive statutory
requirements, by requiring the foreclosing party to demonstrate in court that it is
authorized to initiate a foreclosure. (Ibid.) ‘[A]llowing a trustor-debtor to pursue such an
action, absent a “specific factual basis for alleging that the foreclosure was not initiated
by the correct party” would unnecessarily “interject the courts into [the] comprehensive
nonjudicial scheme” created by the Legislature, and “would be inconsistent with the
policy behind nonjudicial foreclosure of providing a quick, inexpensive and efficient
remedy. [Citation.]” ’ (Id. at p. 512.)” (Siliga, supra, 219 Cal.App.4th at pp. 82–83.)
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Summary Of Millari’s Position
Millari’s position here essentially ignores all the above, to the point that he does
not even mention Siliga in his reply brief, despite its being cited three times by
respondents. Rather, Millari makes what might be called an all-out assault on the process
itself, his opening brief, as noted, containing only one argument. That one argument has
seven sub-arguments, Millari’s table of contents reading as follows:
“A. Respondents’ Demurrer Was Sustained Without Lawful and Valid Evidence
That Respondents Are the Lawful Beneficiary of the Original Lender . . .
“1. Statement [sic] of Review . . .
“2. Respondents [sic] Analysis Of Gomes Is Fatally Flawed . . .
“3. Respondents [sic] Arguments Fail As a Matter of Law . . .
“4. Leave To Amend Should be Liberally Granted . . .
“5. Appellant Can Seek Cancellation of Trustee’s Deed . . .
“6. Jenkins is Not Relevant In These Matters . . .
“7. The Trial Court’s Preliminary Injunction Ruling Was Erroneous . . . .”
Millari’s attack on the process must fail, as several cases have held, illustrated by
Jenkins, supra, 216 Cal.App.4th at pp. 511–512, which succinctly put it this way:
“California courts have refused to delay the nonjudicial foreclosure process by
allowing trustor-debtors to pursue preemptive judicial actions to challenge the right,
power, and authority of a foreclosing ‘beneficiary’ or beneficiary’s ‘agent’ to initiate and
pursue foreclosure. (See Debrunner v. Deutsche Bank National Trust Co. (2012) 204
Cal. App. 4th 433, 440–442 (Debrunner); Gomes, supra, 192 Cal.App.4th at pp. 1154–
1157.) In Gomes, our colleagues in Division One considered whether California’s
nonjudicial foreclosure statutes allow a defaulting trustor-debtor, before his or her
property is sold, to bring a preemptive judicial action to challenge whether the person
initiating the foreclosure is, or is duly authorized to do so by, the person who possesses a
secured interest in the property. (Gomes, supra, 192 Cal.App.4th at p. 1152.) Much like
Jenkins’s first cause of action, the appellant in Gomes alleged, ‘on information and
belief,’ the entity that initiated the nonjudicial foreclosure process did not have the
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authority to do so because (1) the entity was not the owner of the promissory note that
was secured by the deed of trust and (2) the entity was not an authorized agent of the
owner of the promissory note. (Ibid.)
“In the Gomes court’s analysis of the validity of the appellant’s claim, it made the
important point that such a preemptive action does not seek a remedy for a foreclosing
party’s misconduct with regards to the initiation and processing of the nonjudicial
foreclosure, which, as we noted above, may serve as the basis for a valid cause of action.
(Gomes, supra, 192 Cal.App.4th at p. 1154, fn. 5.) Instead, the Gomes court found that
such a preemptive action seeks to create ‘the additional requirement’ that the foreclosing
entity must ‘demonstrate in court that it is authorized to initiate a foreclosure’ before the
foreclosure can proceed. (Ibid., italics added.) After examining the nonjudicial
foreclosure statutes and considering the well-established purposes of nonjudicial
foreclosure, the Gomes court found no express or implied grounds for allowing such a
preemptive action. (Id. at p. 1156.) Consequently, the Gomes court concluded that
allowing a trustor-debtor to pursue such an action, absent a ‘specific factual basis for
alleging that the foreclosure was not initiated by the correct party’ would unnecessarily
‘interject the courts into [the] comprehensive nonjudicial scheme’ created by the
Legislature, and ‘would be inconsistent with the policy behind nonjudicial foreclosure of
providing a quick, inexpensive and efficient remedy. [Citation.]’ (Id. at pp. 1154–1156
& fn. 5.)”
Despite his sub-argument headings, Millari devotes little effort to distinguish
Jenkins or Gomes. This is all he says about Jenkins: “Jenkins v JP Morgan Chase Bank,
216 Cal. App. 4th 497 is clearly off point in this matter. Jenkins states in pertinent part:
[¶] [‘]The court offered several reasons for its ruling. It explained Jenkins failed to state
a basis for declaratory relief because: (1) production of the note is not required to perfect
foreclosure; (2) Jenkins was not a party or a third party beneficiary to the securitized
investment trust’s pooling and servicing agreement; and (3) California does not recognize
a preemptive suit challenging a foreclosing party’s right or ability to foreclose.[’] [¶]
Appellant never required the Respondents to ‘produce the note.’ Respondents chose to
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create arguments in their boilerplate Demurrer that support case law that favors
Respondents’ position which was never alleged in the Complaint.”
And this is all he says about Gomes: “Gomes . . . supports non-judicial foreclosure
but does NOT speak to ownership of the mortgage. Nor does Gomes support the
contention that any entity can foreclose without lawful or valid assignments.”
As indicated, Millari makes no effort to justify any of the specific causes of action
he attempted to allege, not even mentioning the requisite elements of the claims, much
less how the allegations in the SAC measured up. Notwithstanding this, defendants
understandably covered all bases, and spent 12 pages addressing the SAC cause of action
by cause of action, obviously at significant expense. Millari’s ten-page reply brief
ignores the claims as well, continuing what can only be described as his attack on the
very process. This is how the introduction in Millari’s reply brief puts it:
“Respondents claim there was a default, prove no supporting evidence of same
and after benefiting from the securitization of Appellants home, then seek to take
Appellant’s home so they can do the same process to yet another homeowner. Appellant
purchased his home, in good faith. Respondents made profits from the admitted
securitization process. In their greed, they failed to ensure that Appellant’s chain of title
was not broken, that Appellant was ALWAYS AWARE of who was entitled to payment
of his mortgage and ensured regular invoicing was provided to Appellant. Instead, there
was NO billing for several years, the REAL party in interest was never revealed and
suddenly in 2008 Respondents magically appear and demand payment. [¶] Respondents
[sic] Opening Brief fail [sic] to show, address or otherwise produce evidence that any
Respondent is entitled to take default and that Appellant has any obligation to these
Respondents . . . . Under current law, Respondents should [sic] how that they offered
Appellant loan modification options which Appellant refused to satisfy. While Marks
[sic] has been out lawyered by counsel in these matters, orders based upon fraud and
misrepresentations are VOID. Respondents should present clear irrefutable evidence
showing that Appellant refused their demands for payment for several years, and why
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Respondents took several years to made [sic] demand or otherwise collect a debt it
believed it was owed.
And this is Millari’s conclusion: “Appellant continues to contend that the
requirements of California’s non-judicial foreclosure statute must be strictly enforced.
Miller v. Cote (1982) 127 Cal. App. 3d 888, 894. Respondents’ failure to comply with the
statute’s provisions has deprived Appellant of due process of law guaranteed by Article I,
Section 7 of California’s Constitution. Appellant properly alleges and believes that
Respondents knowingly and deliberately filed false assignments and foreclosure
documents in order to unfairly and unjustly benefit themselves. Appellant alleges
Respondents have acted with malicious intent to unlawfully foreclose upon Appellant.
Appellant further and properly alleges that Respondents have no standing to do so.”
It is utterly unavailing, not to mention that it directly ignores the trial court’s
proper conclusion that “Defendants had authority to initiate foreclosure proceedings”—a
conclusion based on the judicially noticeable facts filed in support of defendants’
demurrer.
A few of Millari’s conclusory contentions have also been expressly rejected.
Thus:
An argument that defendants are required to demonstrate ownership of the subject
loan. (Gomes, supra, 192 Cal.App.4th at pp. 1155–1156.)
Challenges to the lender’s authority to enforce the terms of a loan on the grounds
that it has been securitized. (See, for example, Lane v. Vitek Real Estate Industries
Group. (E.D.Cal. 2010) 713 F. Supp. 2d 1092, 1099 [“The argument that parties lose their
interest in a loan when it is assigned to a trust pool has also been rejected by many district
courts.”]; Bascos v. Fed. Home Loan Mortg. Corp. (C.D. Cal. July 22, 2011, No. C 12-
00108) 2011 U.S. Dist. Lexis 86248 at pp.18–19; Hafiz v. Greenpoint Mortg. Funding,
Inc. (N.D.Cal. 2009) 652 F. Supp. 2d 1039, 1043 [Courts have summarily rejected the
argument that the companies [like Chase] lose “their power of sale pursuant to the deed
of trust when the original promissory note was assigned to a trust pool.”].)
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A claim premised on an alleged violation of a pooling and servicing agreement.
(See, e.g., Sami v. Wells Fargo Bank, (N.D.Cal. Mar. 21, 2012, No. C 12-00108 DMR)
2012 U.S. Dist. Lexis 38466 [“To the extent Plaintiff bases her claims on the theory that
Wells Fargo allegedly failed to comply with the terms of the PSA, the court finds that she
lacks standing to do so because she is neither a party to, nor a third party beneficiary of,
that agreement.”].)
In sum, Millari’s position has been soundly rejected, time and again, in case after
case, a reality Millari does not even acknowledge, much less confront. His conduct
cannot be condoned, and his persistence in the face of it all must come to an end.
Little more need be said about the futility of Millari’s position, but we do feel
constrained to quote a portion of Millari’s reply brief, to show just how misguided—and
misplaced—his position. That quotation is his reference to, and reliance upon, Glaski,
supra, 218 Cal. App. 4th 1079—a case not even mentioned in his opening brief. What
Millari says in his reply is this, quoted verbatim, all “sics” purposely omitted:
“A. Respondent’s Contention that California Law Does Not Permit
Appellant To Bring This Preemptive Lawsuit Challenging Respondents’ Authority
to Foreclose is Erroneous and Fatally Flawed
“On August 8, 2013, the California Court of Appeals, Fifth Circuit, Case No.
F064556 Court set Glaski v. Bank of America, this ruling, confirms the arguments that
Appellant has properly brought to bar. Transfer of real estate cannot be based upon
fraud. This California Supreme Court decision, while widely rejected, does not make it
an erroneous ruling. Many courts favor the banks, that does not make such rulings just.
Many courts make precedent based upon the pleadings of inexperienced homeowners and
use said rulings against homeowners. That does not make them “just”. The Supreme
Court held in relevant part in Glaski: [¶] . . . ‘where a plaintiff alleges that the entity
lacked authority to foreclose on the property, the foreclosure sale would be void.
[Citation.]’ (Lester v. J.P. Morgan Chase Bank, supra, ___ F.Supp.2d ___, [2013 WL
633333, p. *8].) [¶] . . . Consequently, we conclude that Nguyen v. Calhoun, supra, 105
15
Cal. App. 4th 428 does not deprive Glaski of the opportunity to prove the foreclosure sale
was void based on a lack of authority.[’]
“What Appellant seeks here is reasonable and common sense. In order to demand
payment an obligation must be owed. Clearly owed, unquestionably owed. Respondents
fail to show ANY evidence that Appellant owes them a sum. Respondents fail to show
evidence that Appellant REFUSED to pay them after they provided numerous invoices to
Appellant and Appellant ignored said payment demands. Instead, after selling
Appellant’s mortgage numerous times in default swaps, and profiting 10 fold, as an
afterthought Respondents claim Appellant owes them an obligation, and instead of
following the law, Respondents chose unfair foreclosure.
“While California Courts refuse to follow Glaski, a California Supreme Court
ruling, which the doctrine of stare decisis demands be followed, banks filed appeals and
moved to depublish the ruling, obviously, clearly, the ruling was just and fair and offered
just the tiniest bit of justice to Appellants and the homeowers who continue to battle for
justice in these matter.”
Millari’s counsel should be ashamed of that passage, which is wrong in so many
ways. Beyond that, Glaski involved application of New York law, has not been followed
by any other California court, and indeed, has been uniformly rejected.
Lastly, we conclude that Millari is not entitled to an opportunity to amend, as he
could not have cured the myriad defects in his pleading. As indicated, Millari’s burden is
to show how any amendment can cure the defects. (Goodman v. Kennedy (1976)
18 Cal. 3d 335, 349.) And he cannot do it with boilerplate representations that he can
cure them. (Rossberg, supra, 219 Cal.App.4th at p. 1491; Traders Sports, Inc. v. City of
San Leandro, supra, 93 Cal. App. 4th 37, 44.)
Not only does Millari not indicate how he could amend, when he was permitted to
amend following the successful demurrer to the FAC, he submitted the SAC that was
essentially identical to the FAC. In sum, permitting any amendment would have been
futile. (Davaloo v. State Farm Ins. Co. (2005) 135 Cal. App. 4th 409, 414–415.)
16
DISPOSITION
The judgment of dismissal is affirmed.
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_________________________
Richman, J.
We concur:
_________________________
Kline, P. J.
_________________________
Stewart, J.
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