Jamali v. Bank of America Home Loans CA2/5 ( 2016 )

Filed 1/6/16 Jamali v. Bank of America Home Loans CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
SECOND APPELLATE DISTRICT
DIVISION FIVE
PARVIN JAMALI, B256199
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC518965)
v.
BANK OF AMERICA HOME LOANS,
AS SUCCESSOR LOANS, INC. et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of Los Angeles County, Michelle
R. Rosenblatt, Judge. Affirmed in part; dismissed in part.
Law Office of Michael Shemtoub and Michael Shemtoub for Plaintiff and
Appellant.
Reed Smith, Michael Gerst and Myles A. Lanzone; Dinsmore & Sandelmann,
Frank Sandelmann and Kirsten Stockton for Defendants and Respondents.
I. INTRODUCTION
Plaintiff, Parvin Jamali, appeals from a March 10, 2014 judgment of dismissal in
favor of defendants: Bank of America, N.A., as successor-by-merger to Bank of America
Home Loans Servicing LP formerly known as Countrywide Home Loans Servicing LP
(Bank of America), ReconTrust Company, N.A. (ReconTrust Company), and The Bank
of New York Mellon formerly known as The Bank of New York as Trustee for
Certificateholders of CWMBA, Inc., CHL Mortgage Pass-Through Trust 2007-HY4, and
Mortgage Pass-Through Certificates, Series 2007-HY4 (the trust). The judgment was
entered after the trial court sustained without leave to amend the demurrers of defendants
and a codefendant, Martingale Investments, LLC. Plaintiff argues the trial court erred by
following Jenkins v. JPMorgan Chase Bank, N.A. (2013) 216 Cal. App. 4th 497, 505
(Jenkins). Plaintiff contends rather that Glaski v. Bank of America (2013) 218
Cal. App. 4th 1079, 1092-1101 (Glaski) is the controlling authority. We disagree. We
affirm the March 10, 2014 judgment of dismissal.
Plaintiff also appeals the order sustaining the demurrer of Martingale Investments,
LLC without leave to amend. However, we do not consider that ruling because there is
no judgment dismissing the complaint of Martingale Investments, LLC. Accordingly, we
dismiss plaintiff’s appeal relating to Martingale Investments, LLC.
II. BACKGROUND
A. Complaint
On August 20, 2013, plaintiff filed a verified complaint against defendants. The
complaint alleges four causes of action: quiet title; wrongful foreclosure; cancellation of
instruments; and elder abuse. Plaintiff is an elderly woman who purchased real property
in Hollywood, California on August 3, 2007. On the same day, Countrywide Home
Loans, Inc. recorded a trust deed securing a loan of $720,000 that was made to plaintiff.
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ReconTrust Company, is named the trustee on the trust deed with Countrywide Home
Loans, Inc. identified as the lender. Bank of America later became the successor in
interest to Countrywide Home Loans, Inc.
On March 1, 2012, Mortgage Electronic Registration Systems, Inc., on behalf of
Bank of America, recorded the assignment of trust deed to the trust. On August 9, 2012,
ReconTrust Company recorded a notice of default on behalf of the trust. On June 14,
2013, ReconTrust Company recorded a notice of trustee’s sale. According to the
complaint, ReconTrust Company allegedly failed to comply with Civil Code section
2923.3. The trustee’s sale notice stated plaintiff’s home would be sold at an auction on
July 8, 2013. Martingale Investments, LLC purchased the property at an auction. On
July 18, 2013, Martingale Investments, LLC recorded the trustee’s deed upon sale.
The complaint alleges Bank of America’s securitization and transfer of the trust
deed and promissory note to the trust was void as a matter of law under New York
Estates, Powers and Trusts Law section 7-2.4. Bank of America’s assignment of the trust
deed and promissory note allegedly failed because they occurred after the closing date of
the trust. According to the complaint, no trust deed and promissory note can be
transferred to the trust after the September 28, 2007 closing date. In addition, the
complaint alleges, “Coupled with all of the failings with Civil Code 2923, et seq. . . ., it is
clear that Plaintiff who has offered to pay off her loan as early as the invalid Assignment
of the Deed of Trust was recorded (to the proper entity) (months before any default had
ever occurred and continuing to so offer after Notice of Default was recorded and
continuing till even after the Trustee’s Sale) is entitled to a rescission of the Trustee’s
Sale of July 8, 2013, and is likewise entitled to tort like damages as well.”
B. Plaintiff’s Applications for Orders to Transfer, Relate and Consolidate Unlawful
Detainer Case and Motion for Judgment on Pleadings
On August 23, 2013, plaintiff filed an ex-parte application for order transferring
the unlawful detainer case from the Los Angeles County Superior Court in Santa Monica
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and relating the cases. The unlawful detainer case was filed by Martingale Investments,
LLC against plaintiff on July 23, 2013. On August 28, 2013, plaintiff filed a second ex-
parte application for orders to transfer, relate and consolidate the cases. On the same day,
the trial court granted in part and denied in part plaintiff’s ex-parte application. The trial
court ordered the cases related but denied the motion to consolidate without prejudice.
On October 28, 2013, plaintiff filed an ex-parte application for orders advancing
the hearing on her motions to consolidate the cases and for judgment on the pleadings. In
addition, plaintiff moved to vacate or continue the trial date set for the unlawful detainer
case. Plaintiff’s counsel stated the unlawful detainer case was set for a bench trial when
it should be set for a jury trial. The trial court granted plaintiff’s ex-parte application in
part by vacating the unlawful detainer trial date. The trial court denied plaintiff’s
requests to shorten time on the motions.
On November 4, 2013, plaintiff filed a motion to consolidate the cases. In
addition, plaintiff moved for judgment on the pleadings. On December 4, 2013, the trial
court denied plaintiff’s motion for judgment on the pleadings. The trial court granted
plaintiff’s motion to consolidate the unlawful detainer case with the civil action.
C. Demurrers
On September 3, 2013, defendants demurred to the complaint. In support of their
demurrer, defendants requested judicial notice of the following documents: the trust
deed; the assignment of the trust deed; the notice of default and election to sell; the
trustee’s sale notice; and the trustee’s deed of sale. On September 27, 2013, Martingale
Investments, LLC demurred to the complaint. Martingale Investments, LLC requested
judicial notice of the: trustee’s deed upon sale; default notice and election to sell; and
trustee sale notice. On December 30, 2013, plaintiff filed oppositions to the demurrers.
In addition, plaintiff opposed defendants’ requests for judicial notice of documents in
support of the demurrers.
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D. Trial Court Rulings
On March 10, 2014, the trial court ruled on defendants’ demurrers. The trial
court found plaintiff’s oppositions to the demurrers were untimely served but
nevertheless considered them. In addition, the trial court took judicial notice of the: trust
deed dated July 25, 2007; trust deed assignment dated March 1, 2012; default notice
recorded on August 9, 2012; trustee’s sale notice recorded on June 14, 2013; and trustee’s
deed upon sale recorded on July 18, 2013. The trial court sustained defendants’
demurrers without leave to amend.
With respect to the first cause of action for quiet title, the trial court ruled:
plaintiff failed to allege Martingale Investments, LLC had constructive or actual
knowledge of the alleged irregularities in the foreclosure sale; plaintiff did not allege
Martingale Investments, LLC engaged in any wrongful conduct; and Civil Code sections
2923.5 and 2924, subdivision (b)(5) did not permit plaintiff to set aside the trustee’s sale.
The trial court sustained defendants’ demurrer to the quiet title cause of action because
plaintiff failed to allege tender. The trial court reasoned: “As to the tender issue, the
complaint alleges that at some point Plaintiff wished to pay off the loan but the [proper]
parties were not informed. The complaint does not allege that Plaintiff is currently
willing and able to tender all amounts due, nor has she alleged any exceptions to this
requirement.” The trial court also found plaintiff did not allege defendants’ wrongful
interest in the property based on the sale to Martingale Investments, LLC.
In addition, the trial court sustained the demurrers to the second cause of action for
wrongful foreclosure. The trial court ruled: Civil Code section 2923.5 did not permit
plaintiff to set aside the foreclosure sale; plaintiff did not have standing to challenge the
assignment of the loan to the trust; and the complaint did not allege Martingale
Investments, LLC was involved in the foreclosure proceeding other than being the
purchaser of the property.
The trial court sustained the demurrers to the third cause of action for cancellation
of instruments because it was premised on the alleged improper assignment of the loan to
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the trust. Because the trial court rejected plaintiff’s challenge to the late assignment, it
sustained the demurrers without leave to amend as to the cancellation of instruments
claim. Finally, the trial court sustained the demurrers to the fourth cause of action for
elder abuse without leave to amend because it was based on the other causes of action.
On March 10, 2014, the trial court entered a judgment of dismissal in defendants’
favor. On April 21, 2014, the trial court entered an order and judgment of dismissal in
favor of Martingale Investments, LLC. In addition, the trial court, nunc pro tunc, ordered
the unlawful detainer severed from the civil action and transferred back to the Los
Angeles County Superior Court in Santa Monica. On April 30, 2014, plaintiff filed an
ex-parte application for an order vacating the Martingale Investments, LLC order and
judgment of dismissal. On April 30, 2014, the trial court granted plaintiff’s application
and vacated the April 21, 2014 order and judgment of dismissal in favor of Martingale
Investments, LLC. Plaintiff filed her notice of appeal on May 8, 2014.
III. DISCUSSION
A. Appealability
Plaintiff suggests we may not have jurisdiction to consider the present appeal
because of the one final judgment rule. Under the one final judgment rule, a judgment
that fails to dispose of all causes of action pending between the parties is interlocutory
and thus generally not appealable. (Code Civ. Proc., § 904.1, subd. (a); Kurwa v.
Kislinger (2013) 57 Cal. 4th 1097, 1100-1101; Morehart v. County of Santa Barbara
(1994) 7 Cal. 4th 725, 741.) But an appeal will not be dismissed when the case involves
multiple parties and a judgment is entered which leaves no issue to be determined as to
one of the parties. (Justus v. Atchison (1977) 19 Cal. 3d 564, 568, disapproved on another
ground in Ochoa v. Superior Court (1985) 39 Cal. 3d 159, 171; Nguyen v. Calhoun (2003)
105 Cal. App. 4th 428, 437; Estate of Gonzalez (1990) 219 Cal. App. 3d 1598, 1601 [“It is
well settled that where, as here, there is a judgment resolving all issues between a
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plaintiff and one defendant, then either party may appeal from an adverse judgment, even
though the action remains pending between the plaintiff and other defendants.”]) Here,
the March 10, 2014 order and judgment dismissing defendants from the case with
prejudice is a final judgment that resolves all issues between plaintiff and defendants.
Thus, we have jurisdiction to consider plaintiff’s appeal from the March 10, 2014
judgment of dismissal in defendants’ favor.
However, we cannot consider plaintiff’s appeal from the order sustaining the
demurrer of Martingale Investments, LLC without leave to amend. The trial court
entered an order and judgment of dismissal in favor of Martingale Investments, LLC on
April 21, 2014. But the trial court later vacated the judgment in favor of Martingale
Investments, LLC on April 30, 2014. Thus, plaintiff cannot appeal the order sustaining
Martingale Investments’ demurrer. In I.J. Weinrot & Son, Inc. v. Jackson (1985) 40
Cal. 3d 327, 331, our Supreme Court stated, “An order sustaining a demurrer without
leave to amend is not an appealable order; only a judgment entered on such an order can
be appealed.” (Accord, Singhania v. Uttarwar (2006) 136 Cal. App. 4th 416, 425; Jackson
v. Teachers Ins. Co. (1973) 30 Cal. App. 3d 341, 343.)
Martingale Investments, LLC contends dismissal of plaintiff’s appeal would cause
“unnecessary delay and circuity,” citing Shepardson v. McLellan (1963) 59 Cal. 2d 83, 89
(Shepardson). Relying on Sherpardson, Martingale Investments, LLC argues we can
save the appeal by amending the judgment in favor of defendants so as to include it. But
in Sherpardson, our Supreme Court modified an existing judgment to dismiss the cause
of action subject to the demurrer and treated the notice of appeal as a premature filing of
that judgment. (Ibid.) Sherpardson is inapplicable because in this case there is no
existing judgment as to Martingale Investments, LLC. (Currier v. County of San Diego
(1963) 216 Cal. App. 2d 595, 596-597 [no appeal lies where there is no judgment of
dismissal to modify]; see Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs
(The Rutter Group 2014) ¶ 2:20, p. 2-19.) Accordingly, plaintiff’s appeal from the March
10, 2014 order sustaining the demurrer of Martingale Investments, LLC is dismissed.
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B. Judicial Notice
As a preliminary matter, plaintiff asserts the judgment must be reversed because
defendants failed to request that we take judicial notice of documents already noticed by
the trial court. Under Evidence Code section 459, subdivision (a), we are required to
judicially notice each matter properly noticed by the trial court. In reviewing the trial
court’s ruling sustaining the demurrer, we may consider matters that have been judicially
noticed. (Committee for Green Foothills v. Santa Clara County Bd. of Supervisors
(2010) 48 Cal. 4th 32, 42; Evans v. City of Berkeley (2006) 38 Cal. 4th 1, 6.)
Plaintiff also challenges the trial court’s judicial notice of the following
documents: the trust deed trust; the assignment of the trust deed; the default notice; the
trustee’s sale notice; and the trustee’s deed upon sale. Plaintiff argues it was
inappropriate for the trial court to judicially notice these documents. We review for
abuse of discretion the trial court’s ruling granting the judicial notice request. (Fontenot
v. Wells Fargo Bank, N.A. (2011) 198 Cal. App. 4th 256, 264; Evans v. California Trailer
Court, Inc. (1994) 28 Cal. App. 4th 540, 549.)
The trial court did not abuse its discretion in granting defendants’ judicial notice
request. All of the judicially noticed documents were referenced and attached to the
complaint. Exhibits attached to the complaint may be considered on demurrer.
(Qualcomm, Inc. v. Certain Underwriters at Lloyd’s, London (2008) 161 Cal. App. 4th
184, 191; City of Pomona v. Superior Court (2001) 89 Cal. App. 4th 793, 800 [“Where
written documents are the foundation of an action and are attached to the complaint and
incorporated therein by reference, they become a part of the complaint and may be
considered on demurrer.”]; Thaler v. Household Finance Corp. (2000) 80 Cal. App. 4th
1093, 1101; Frantz v. Blackwell (1987) 189 Cal. App. 3d 91, 94.) On review of a ruling
on a demurrer, we accept as true the contents of documents attached to the complaint.
(Jibilian v. Franchise Tax Bd. (2006) 136 Cal. App. 4th 862, 864 fn. 1; Building Permit
Consultants, Inc. v. Mazur (2004) 122 Cal. App. 4th 1400, 1409.) Furthermore, the court
may take judicial notice of recorded documents under Evidence Code section 452,
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subdivisions (c), (g) and (h). (West v. JPMorgan Chase Bank, N.A. (2013) 214
Cal. App. 4th 780, 803 [judicial notice of trustee’s deed upon sale]; Ragland v. U.S. Bank
National Assn. (2012) 209 Cal. App. 4th 182, 194; Fontenot v. Wells Fargo Bank, N.A.,
supra, 198 Cal.App.4th at p. 264 [judicial notice of trust deed]; Lockhart v. MVM, Inc.
(2009) 175 Cal. App. 4th 1452, 1460-1461 [judicial notice of grant deed]; Evans v.
California Trailer Court, Inc., supra, 28 Cal.App.4th at p. 549 [judicial notice of trustee’s
deed]; Cal-American Income Property Fund II v. County of Los Angeles (1989) 208
Cal. App. 3d 109, 112, fn. 2.)
C. Standard of Review for Demurrer
On appeal from a judgment based on an order sustaining a demurrer, we assume
all the facts alleged in the complaint are true. (Sheehan v. San Francisco 49ers, Ltd.
(2009) 45 Cal. 4th 992, 998; Evans v. City of Berkeley, supra, 38 Cal.4th at p. 6.) In
addition, we consider judicially noticed matters. (Committee for Green Foothills v. Santa
Clara County Bd. of Supervisors, supra, 48 Cal.4th at p. 42; Evans v. City of Berkeley,
supra, 38 Cal.4th at p. 6.) We accept all properly pleaded material facts but not
contentions, deductions or conclusions of fact or law. (Evans v. City of Berkeley, supra,
38 Cal.4th at p. 6; Serrano v. Priest (1971) 5 Cal. 3d 584, 591.) We determine de novo
whether the complaint alleges facts sufficient to state a cause of action under any legal
theory. (Committee for Green Foothills v. Santa Clara County Bd. of Supervisors, supra,
48 Cal.4th at p. 42; McCall v. PacifiCare of Cal., Inc. (2001) 25 Cal. 4th 412, 415.) We
read the complaint as a whole and its parts in their context to give it a reasonable
interpretation. (Evans v. City of Berkeley, supra, 38 Cal.4th at p. 6; Blank v. Kirwan
(1985) 39 Cal. 3d 311, 318.) We affirm an order sustaining a demurrer only if the
complaint fails to state a claim under any possible legal theory. (Sheehan v. San
Francisco 49ers, Ltd., supra, 45 Cal.4th at p. 998; Fox v. Ethicon Endo-Surgery, Inc.
(2005) 35 Cal. 4th 797, 810.)
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D. Quiet Title
For a quiet title cause of action, it is sufficient to allege the plaintiff’s ownership
and possession of the real property and the defendant’s claims of an adverse interest.
(Lucas v. Sweet (1956) 47 Cal. 2d 20, 22; Ephraim v. Metropolitan Trust Co. (1946) 28
Cal. 2d 824, 833; South Shore Land Co. v. Peterson (1964) 226 Cal. App. 2d 725, 740-
741.) In West v. JPMorgan Chase Bank, N.A., supra, 214 Cal.App.4th at page 802, the
Fourth Appellate District, Division Three explained: “An element of a cause of action
for quiet title is ‘[t]he adverse claims to the title of the plaintiff against which a
determination is sought.’ (Code Civ. Proc., § 761.020, subd. (c).)” A borrower cannot
satisfy this element where defendants make no adverse claims to title after the property
has been sold at a foreclosure sale to a third party purchaser. (West v. JPMorgan Chase
Bank, N.A., supra, 214 Cal.App.4th at pp. 802-803.) Here, the property was sold at a
trustee’s sale to a third party purchaser, Martingale Investments, LLC. The complaint
does not allege defendants have an adverse claim to title subsequent to the foreclosure
sale. Nor does the complaint allege defendants still hold an interest in the property after
the trustee’s sale. Because the defendants do not have an adverse claim to title, the trial
court did not err by sustaining their demurrer to the first cause of action for quiet title.
E. Wrongful Foreclosure
To challenge a nonjudicial foreclosure sale, a plaintiff may bring a suit in equity to
have the sale set aside and title restored. (Ram v. OneWest Bank, FSB (2015) 234
Cal. App. 4th 1, 10-11; Lona v. Citibank, N.A. (2011) 202 Cal. App. 4th 89, 103.) To set
aside a trustee’s sale or maintain a wrongful foreclosure claim, the complaint must allege:
the defendants caused an illegal, fraudulent or willfully oppressive sale of the property
pursuant to a power of sale in a mortgage or trust deed; the plaintiff suffered prejudice or
harm; and the plaintiff tendered the amount of the secured indebtedness or was excused
from tendering. (Chavez v. Indymac Mortgage Services (2013) 219 Cal. App. 4th 1052,
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1062; West v. JPMorgan Chase Bank, N.A., supra, 214 Cal.App.4th at p. 800; Lona v.
Citibank, N.A., supra, 202 Cal.App.4th at p. 104.)
Plaintiff premises her wrongful foreclosure cause of action on the alleged void
transfer of her trust deed and promissory note to the trust after its closing date. The
complaint alleges Bank of America’s securitization and transfer of the trust deed and
promissory note to the trust on March 1, 2012, was void. According to the complaint, no
trust deed or promissory note could be transferred to the trust after it closed on September
28, 2007.
Plaintiff contends she has standing to challenge the assignment of the trust deed
and subsequent foreclosure relying on Glaski, supra, 218 Cal.App.4th at pages 1092-
1101. She argues the trial court erred by relying on Jenkins, supra, 216 Cal.App.4th at
pages 511-515. The Jenkins decision predates Glaski, supra, 218 Cal.App.4th at pages
1095-1097. Plaintiff contends Glaski is controlling authority because it is factually
similar to this case. She asserts the trial court erred in adopting the rationale in Jenkins
because that case is not on point. We disagree.
In Jenkins, the plaintiff borrower sought declaratory relief based on the
defendants’ alleged improper transfer of the promissory note during the securitization
process. (Jenkins, supra, 216 Cal.App.4th at p. 514.) The plaintiff asserted the
defendants did not have a secured interest in her home to foreclose upon. The plaintiff
reason no secured interest existed because of alleged noncompliance with the terms of the
investment trust’s pooling and servicing agreement. (Ibid.) The plaintiff alleged the
pooling and servicing agreement were violated in part because the trustee of the
investment trust did not have physical possession of the note and trust deed prior to the
closing date of the investment trust. (Id. at p. 510.) The Fourth Appellate District,
Division Three held the plaintiff lacked standing to challenge the alleged improper
transfer of the promissory note: “As an unrelated third party to the alleged securitization,
and any other subsequent transfers of the beneficial interest under the promissory note,
[plaintiff] lacks standing to enforce any agreements, including the investment trust’s
pooling and servicing agreement, relating to such transactions. [Citation.] [¶]
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Furthermore, even if any subsequent transfers of the promissory note were invalid,
[plaintiff] is not the victim of such invalid transfers because her obligations under the
note remained unchanged.” (Id. at p. 515.)
In Glaski, the plaintiff borrower alleged the transfer of his trust deed to the
securitized trust was ineffective because it was made after the trust’s closing date.
(Glaski, supra, 218 Cal.App.4th at p. 1082.) The Fifth Appellate District panel reasoned
plaintiff had standing to challenge the trust deed assignment if the alleged defects made
the assignment void and not merely voidable. (Glaski, supra, 218 Cal.App.4th at pp.
1094-1095.) The Fifth Appellate District reached this conclusion based on its literal
reading of New York Estates, Powers and Trusts Law section 7-2.4, which states, “If the
trust is expressed in [an] instrument creating the estate of the trustee, every sale,
conveyance or other act of the trustee in contravention of the trust, except as authorized
by this article and by any other provision of law, is void.” (Glaski, supra, 218
Cal.App.4th at pp. 1096-1097.) The Glaski court ruled under New York trust law, the
trust deed assignment was void because it contravened the trust document. (Id. at p.
1096.) The Fifth District panel also relied upon on Wells Fargo Bank, N.A. v. Erobobo
(N.Y. Sup. Ct. 2013) 39 Misc.3d 1220(A) (Erobobo). The Fifth Appellate District panel
held the borrower had standing to challenge the trust deed assignment because transfers
made after the trust’s closing date were void. (Glaski, supra, 218 Cal.App.4th at p.
1097.)
Plaintiff contends the trial court erred in following Jenkins rather than Glaski as
the controlling authority. Both Jenkins and Glaski involve borrowers challenging the
foreclosure of their homes based on the transfer of a promissory note or trust deed that
allegedly contravened the terms of the trust document. Jenkins concluded the borrower,
as an unrelated third party, did not have standing to challenge the transfer of the
promissory note. By contrast, Glaski ruled the borrower had standing to challenge the
void trust deed assignment. Where there is a conflict in the existing law, the trial court
may choose between the conflicting decisions. (Auto Equity Sales, Inc. v. Superior Court
(1962) 57 Cal. 2d 450, 456; McCallum v. McCallum (1987) 190 Cal. App. 3d 308, 315, fn.
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4.) The trial court was well within its rights to follow the reasoning of Jenkins rather than
Glaski.
And to the extent plaintiff argues we are required to reverse the trial court’s ruling
based on Glaski, we disagree. We are not bound by the Glaski decision. In the case of In
re Marriage of Shaban (2001) 88 Cal. App. 4th 398, 409, the Fourth Appellate District,
Division Three explained, “[B]ecause there is no ‘horizontal stare decisis’ within the
Court of Appeal, intermediate appellate court precedent that might otherwise be binding
on a trial court (see Auto Equity Sales, Inc. v. Superior Court[, supra, 57 Cal.2d at p.
455]) is not absolutely binding on a different panel of the appellate court.” (Accord,
Scher v. Burke (2015) 240 Cal. App. 4th 381, 398; Sarti v. Salt Creek Ltd. (2008) 167
Cal. App. 4th 1187, 1193; McCallum, supra, 190 Cal.App.3d at p. 315, fn. 4.)
Further, we deny plaintiff’s request we defer ruling on this appeal until the
Supreme Court decides the standing issue. Our Supreme Court has granted review of
four wrongful foreclosure cases that declined to follow Glaski. (Yvanova v. New Century
Mortgage Corp. (2014) 226 Cal. App. 4th 495, review granted August 27, 2014, S218973;
Keshtgar v. U.S. Bank, N.A. (2014) 226 Cal. App. 4th 1201, review granted Oct. 1, 2014,
S220012; Mendoza v. JPMorgan Chase Bank, N.A. (2014) 228 Cal. App. 4th 1020, review
granted Nov. 12, 2014, S220675; Boyce v. T.D. Service Co. (2015) 235 Cal. App. 4th 429,
review granted July 15, 2015, S226267.) Pending before the Supreme Court in Yvanova
is the following issue: “In an action for wrongful foreclosure on a deed of trust securing a
home loan, does the borrower have standing to challenge an assignment of the note and
deed of trust on the basis of defects allegedly rendering the assignment void?” (Yvanova
v. New Century Mortgage Corp. (2014) 331 P.3d 1275.) Until our Supreme Court
requires us to do otherwise, we decline to follow Glaski.
Further, numerous state and federal courts have found Glaski unpersuasive. (Kan
v. Guild Mortgage Co. (2014) 230 Cal. App. 4th 736, 744 [“Although not necessary to our
decision, we note that many courts have criticized Glaski’s finding that the plaintiff had
standing to challenge alleged violations of the securitization process.”]; Rajamin v.
Deutsche Bank Nat’l. Trust Co. (2d Cir. 2014) 757 F.3d 79, 86-90 (Rajamin) [borrowers
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lacked standing to challenge assignments of their mortgages]; Brown v. Green Tree
Servicing LLC (D.Minn. 2015) 86 F. Supp. 3d 1047, 1048, fn. 2; Pratap v. Wells Fargo
Bank, N.A (N.D.Cal. 2014) 63 F. Supp. 3d 1101, 1109, fn. 4; Conant v. Wells Fargo Bank,
N.A. (D.D.C. 2014) 60 F. Supp. 3d 99, 109, fn. 4; Flores v. EMC Mortgage Co. (E.D.Cal.
2014) 997 F. Supp. 2d 1088, 1104; Sandri v. Capital One, N.A. (In re Sandri)
(Bankr.N.D.Cal. 2103) 501 B.R. 369, 374-375; U.S. Bank Nat’l. Assn. v. Salvacion
(HawaiiCt.App. 2014) 134 Haw. 170, 175-176; Wood v. Germann (Nev. 2014) 331 P.3d
859, 861; Deutsche Bank Nat’l. Trust Co. v. Maclaurin (N.M.Ct.App. 2015) 350 P.3d
1201, 1204. ) We are persuaded by the reasoning in Jenkins that borrowers lack standing
to challenge a late assignment because they are not parties or intended beneficiaries to the
trust document. (Jenkins, supra, 216 Cal.App.4th at p. 515; accord, Rajamin, supra, 757
F.3d at p. 88 [“[U]nder New York law, only the intended beneficiary of a private trust
may enforce the terms of the trust.”].)
In addition, subsequent decisions by New York appellate court and the Second
Circuit cast doubt on Glaski’s interpretation of New York law and undermine its rationale
for standing. In Glaski, the court reasoned the borrower had standing to challenge the
trust deed trust assignment because the transfer was void under New York Estates,
Powers and Trusts Law section 7-2.4. The Glaski court relied on Erobobo, supra, 39
Misc.3d 1220(A), a New York trial court decision to support its interpretation of New
York law. But that decision has been reversed by the Appellate Division, Second
Department of the Supreme Court of New York. The New York appellate court ruled,
“[A] mortgagor whose loan is owned by a trust [] does not have standing to challenge the
[assignee’s] possession or status as assignee of the note and mortgage based on purported
noncompliance with certain provisions of the [pooling and servicing agreement].” (Wells
Fargo Bank, N.A. v. Erobobo (N.Y.App.Div. 2015) 127 A.D.3d 1176, 1178, citing Bank
of N.Y. Mellon v. Gales (N.Y.App.Div. 2014) 116 A.D.3d 723, 725 [borrowers lacked
standing to challenge noncompliance with the lender’s pooling service agreement] and
Rajamin, supra, 757 F.3d at pp. 86-87.)
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Likewise in Rajamin, the Second Circuit rejected Glaski’s interpretation of New
York Estates, Powers and Trusts Law section 7-2.4. (Rajamin, supra, 757 F.3d at p. 90.)
The Second Circuit ruled the trust deed assignments were voidable, not void. (Ibid.) The
Second Circuit explained: “[W]e conclude that as unauthorized acts of a trustee may be
ratified by the trust’s beneficiaries, such acts are not void but voidable; and that under
New York law such acts are voidable only at the instance of a trust beneficiary or a
person acting in his behalf. Plaintiffs here are not beneficiaries of the securitization
trusts; the beneficiaries are the certificateholders. Plaintiffs are not even incidental
beneficiaries of the securitization trusts, for their interests are adverse to those of the
certificateholders. Plaintiffs do not contend that they did not receive the proceeds of their
loan transactions; and their role thereafter was simply to make payments of the principal
and interest due. The law of trusts provides no basis for plaintiffs’ claims.” (Ibid.) Given
Glaski’s debatable minority interpretation of New York law, we decline to follow it. We
conclude plaintiff lacks standing to challenge the late assignment of the promissory trust
deed because the transfer was not void.
Even assuming the assignment is void, plaintiff cannot allege facts showing
prejudice because her obligations under the promissory note remain unchanged.
(Jenkins, supra, 216 Cal.App.4th at p. 515; Siliga v. Mortgage Electronic Registration
Systems, Inc. (2013) 219 Cal. App. 4th 75, 85 [absent prejudice, borrower lacks standing to
challenge defective assignment].) As explained by the First Appellate District, Division
One in Fontenot v. Wells Fargo Bank, N.A., supra, 198 Cal.App.4th at page 272: “[A]
plaintiff in a suit for wrongful foreclosure has generally been required to demonstrate the
alleged imperfection in the foreclosure process was prejudicial to the plaintiff’s interests.
[Citations.] . . . Prejudice is not presumed from ‘mere irregularities’ in the process.
[Citation.] Even if MERS lacked authority to transfer the note, it is difficult to conceive
how plaintiff was prejudiced by MERS’s purported assignment, and there is no allegation
to this effect. Because a promissory note is a negotiable instrument, a borrower must
anticipate it can and might be transferred to another creditor. As to plaintiff, an
assignment merely substituted one creditor for another, without changing her obligations
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under the note. Plaintiff effectively concedes she was in default, and she does not allege
that the transfer to HSBC interfered in any manner with her payment of the note [citation]
. . ., nor that the original lender would have refrained from foreclosure under the
circumstances presented. If MERS indeed lacked authority to make the assignment, the
true victim was not plaintiff but the original lender . . . .” (Accord, Herrera v. Federal
National Mortgage Assn. (2012) 205 Cal. App. 4th 1495, 1507-1508.) Here, the complaint
fails to allege plaintiff suffered any prejudice as a result of any irregularity in the
assignment of the promissory note and the trust deed.
In summary, plaintiff cannot allege a wrongful foreclosure claim. She lacks
standing to challenge the assignment of the promissory note and trust deed. In addition,
plaintiff is not prejudiced by any irregularities in the securitization process because her
obligations under the promissory note and trust deed remain unchanged. Because
plaintiff fails to allege a wrongful foreclosure cause of action as a matter of law, it is not
necessary for us to determine whether the complaint sufficiently alleges tender.
We also decline to decide whether Civil Code sections 2924.19 and 2924.12, the
Homeowner Bill of Rights, permits plaintiff to assert a wrongful foreclosure claim based
on irregularities in the securitization process. For the first time in the reply brief, plaintiff
argues Civil Code sections 2924.19 and 2924.12 grant her standing to challenge the
validity of the trust deed assignment. By failing to raise this argument in the opening
brief, plaintiff has forfeited the issue on appeal. (Telish v. State Personnel Bd. (2015)
234 Cal. App. 4th 1479, 1487, fn. 4; Dieckmeyer v. Redevelopment Agency of Huntington
Beach (2005) 127 Cal. App. 4th 248, 260.)
F. Cancellation of Instruments
Plaintiff requests judicial cancellation of the: the assignment of the trust deed;
default notice; trustee’s sale notice; and trustee’s deed upon sale. Under Civil Code
section 3412, a plaintiff may bring suit to remove a cloud on title by judicial cancellation
or adjudication that the instrument is invalid. (Castro v. Barry (1889) 79 Cal. 443, 445;
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M.F. Farming Co. v. Couch Distributing Co., Inc. (2012) 207 Cal. App. 4th 180, 200.)
Civil Code section 3412 provides, “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, may, upon his application, be so adjudged, and
ordered to be delivered up or canceled.” (See M.F. Farming Co. v. Couch Distributing
Co., Inc., supra, 207 Cal.App.4th at p. 200.)
Plaintiff’s third cause of action for cancellation of instruments is based on the
alleged invalid assignment of the promissory note and trust deed. But as discussed
above, plaintiff lacks standing to challenge the validity of the assignment. Accordingly,
plaintiff’s cause of action for cancellation of instruments fails as a matter of law. The
trial court properly sustained defendants’ demurrer on the cancellation of instruments
cause of action.
G. Elder Abuse
Welfare and Institutions Code section 15610.30, subdivision (a)(1) states:
“‘Financial abuse’ of an elder or dependent adult occurs when a person or entity does any
of the following: [¶] (1) Takes, secretes, appropriates, obtains, or retains real or
personal property of an elder or dependent adult for a wrongful use or with intent to
defraud, or both.” Further, Welfare and Institutions Code section 15610.30, subdivision
(b) states, “A person or entity shall be deemed to have taken, secreted, appropriated,
obtained, or retained property for a wrongful use if, among other things, the person or
entity takes, secretes, appropriates, obtains, or retains the property and the person or
entity knew or should have known that this conduct is likely to be harmful to the elder or
dependent adult.” It is unnecessary to show a fraudulent intent if the defendant took the
property for a wrongful use and knew or should have known the challenged conduct
harmed the plaintiff. (Stebley v. Litton Loan Servicing LLP (2011) 202 Cal. App. 4th 522,
527-528; Bonfigli v. Strachan (2011) 192 Cal. App. 4th 1302, 1315-1316.) In Stebley v.
Litton Loan Servicing, LLP, supra, 202 Cal.App.4th at page 528, the Third Appellate
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District explained: “As we held in an analogous case, ‘It is simply not tortious for a
commercial lender to lend money, take collateral, or to foreclose on collateral when a
debt is not paid. . . . [A] commercial lender is privileged to pursue its own economic
interests and may properly assert its contractual rights.’ (Sierra-Bay Fed. Land Bank
Assn. v. Superior Court (1991) 227 Cal. App. 3d 318, 334-335 [].)” Plaintiff’s fourth
cause of action for elder abuse is predicated on the alleged invalid assignment of the
promissory note and trust deed. Based on the foregoing analysis, plaintiff lacks standing
to challenge the late assignment. The trial court did not err in sustaining defendants’
demurrer on the financial elder abuse cause of action.
H. Denial of Leave to Amend Complaint
When a trial court sustains a demurrer without leave to amend, we determine
whether there is a reasonable possibility that the defect can be cured by amendment.
(City of Dinuba v. County of Tulare (2007) 41 Cal. 4th 859, 865; Zelig v. County of Los
Angeles (2002) 27 Cal. 4th 1112, 1126.) The trial court abuses its discretion if there is a
reasonable possibility plaintiff could cure the defect by amending the complaint. (City of
Dinuba v. County of Tulare, supra, 41 Cal.4th at p. 865; Campbell v. Regents of
University of California (2005) 35 Cal. 4th 311, 320.) The plaintiff has the burden of
proving the defect would be cured by an amendment. (Campbell v. Regents of University
of California, supra, 35 Cal.4th at p. 320; Schifando v. City of Los Angeles (2003) 31
Cal. 4th 1074, 1081.) Defendant has failed to provide either a reporter’s transcript or a
suitable substitute of the demurrer hearing.
On October 20, 2015, we requested the parties to brief whether plaintiff’s failure
to designate a reporter’s transcript or suitable substitute warrants affirmance based on the
inadequacy of the record. In response, plaintiff argues a reporter’s transcript or agreed
settled statement is not required because this court reviews de novo the order sustaining
the demurrer. However, as noted, we review an order denying leave to amend for an
abuse of discretion.
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A judgment or order is presumed to be correct and appellant has a duty to provide
the reviewing court with an adequate record to demonstrate error. (In re Marriage of
Arceneaux (1990) 51 Cal. 3d 1130, 1133; Denham v. Superior Court (1970) 2 Cal. 3d 557,
564; Oliveira v. Kiesler (2012) 206 Cal. App. 4th 1349, 1362.) In numerous situations,
courts have refused to reach the merits of an appellant’s claims because appellant failed
to provide a reporter’s transcript of a pertinent proceeding or a suitable substitute.
(Walker v. Superior Court (1991) 53 Cal. 3d 257, 273-274 [transfer order]; Maria P. v.
Riles (1987) 43 Cal. 3d 1281, 1295-1296 [attorney fee motion hearing]; Ballard v. Uribe
(1986) 41 Cal. 3d 564, 574-575 (lead opn. of Grodin, J.) [new trial motion hearing]; In re
Kathy P. (1979) 25 Cal. 3d 91, 102 [hearing to determine whether counsel was waived
and minor consented to informal adjudication]; McAllister v. Los Angeles Unified School
Dist. (2013) 216 Cal. App. 4th 1198, 1210-1211 [appellant forfeits challenge of denial of
leave to amend]; Wagner v. Wagner (2008) 162 Cal. App. 4th 249, 259 [discretionary
relief under Code Civ. Proc., § 473, subd. (b)]; Boeken v. Philip Morris, Inc. (2005) 127
Cal. App. 4th 1640, 1672 [no record of judge’s ruling on an instruction request]; Vo v. Las
Virgenes Municipal Water Dist. (2000) 79 Cal. App. 4th 440, 447 [attorney fee award
affirmed where trial transcript not provided]; Estate of Fain (1999) 75 Cal. App. 4th 973,
992 [no reporter’s transcript of surcharge hearing]; Hodges v. Mark (1996) 49
Cal. App. 4th 651, 657 [nonsuit motion affirmed where reporter’s transcript not provided];
Interinsurance Exchange v. Collins (1994) 30 Cal. App. 4th 1445, 1448 [monetary
sanctions hearing]; Hernandez v. City of Encinitas (1994) 28 Cal. App. 4th 1048, 1076-
1077 [preliminary injunction hearing]; Null v. City of Los Angeles (1988) 206 Cal. App. 3d
1528, 1532 [reporter’s transcript fails to reflect content of special instructions]; Buckhart
v. San Francisco Residential Rent etc., Bd. (1988) 197 Cal. App. 3d 1032, 1036 [hearing
on Code Civ. Proc., § 1094.5 petition]; Sui v. Landi (1985) 163 Cal. App. 3d 383, 385
[order denying preliminary injunction dissolution affirmed based on lack of reporter’s
transcript]; Rossiter v. Benoit (1979) 88 Cal. App. 3d 706, 711-712 [demurrer hearing];
Calhoun v. Hildebrandt (1964) 230 Cal. App. 2d 70, 71-73 [argument to jury not in
reporter’s transcript]; Ehman v. Moore (1963) 221 Cal. App. 2d 460, 462-463 [failure to
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secure reporter’s transcript or settled statement as to offers of proof]; Wetsel v. Garibaldi
(1958) 159 Cal. App. 2d 4, 9-10 [no reporter’s transcript of hearing ordering arbitration].)
Plaintiff’s failure to provide an adequate record forfeits any contention concerning leave
to amend.
In any event, there is no merit to plaintiff’s abuse of discretion contentions.
Plaintiff has not proposed any specific amendment to cure the pleading defects identified
above and we can conceive of none. Putting aside the inadequacy of the record, the trial
court’s denial of leave to amend the complaint, was not an abuse of discretion.
IV. DISPOSITION
Plaintiff’s appeal relating to Martingale Investments, LLC is dismissed. As to the
remaining parties, the March 10, 2014 judgment of dismissal is affirmed. Defendants,
Bank of America, N.A., as successor-by-merger to Bank of America Home Loans
Servicing L.P. formerly known as Countrywide Home Loans Servicing LP, ReconTrust
Company, N.A., and The Bank of New York Mellon formerly known as The Bank of
New York as Trustee for Certificateholders of CWMBA, Inc., CHL Mortgage Pass-
Through Trust 2007-HY4, and Mortgage Pass-Through Certificates, Series 2007-HY4,
shall recover their costs on appeal from plaintiff, Parvin Jamali.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
TURNER, P. J.
We concur:
MOSK, J. KRIEGLER, J.
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