McBride v. National Default Servicing Corp. CA1/1 ( 2022 )

Filed 8/23/22 McBride v. National Default Servicing Corp. CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
BARBARA MCBRIDE, as Trustee,
etc.,
A161487
Plaintiff and Appellant,
v. (Solano County
NATIONAL DEFAULT SERVICING Super. Ct. No. FCS050749)
CORPORATION et al.,
Defendants and Respondents.
Plaintiff Barbara McBride alleges she became the successor trustee
and/or successor in interest of her family trust following the death of her
parents. She sued defendants National Default Servicing Corporation, Select
Portfolio Servicing, Inc., and “Deutsche Bank National Trust Company”1 for
violations of Civil Code sections 2923.7 and 2920.7 after defendants initiated
a foreclosure of the trust’s real property. The trial court sustained
defendants’ demurrer to McBride’s fifth amended complaint based on the
Legislature’s repeal of section 2920.7. (Civ. Code, former § 2920.7, subd. (o).)
This defendant responded as “Deutsche Bank National Trust
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Company, as Trustee, on Behalf of the Holders of WAMU Mortgage Pass-
through Certificates, Series 2005-AR11 [erroneously sued as ‘Deutsche Bank
National Trust Company’].” We will refer to it hereafter as Deutsche Bank.
For the reasons detailed below, we agree with the trial court and affirm the
order.
I.
BACKGROUND
In her fifth amended complaint, McBride alleged that in 2005 her
parents, acting as trustees of the family trust, obtained a $650,000 loan
secured by real property located in Benicia, California. The original lender
and trustee of the deed of trust (Deed) assigned the Deed to defendant
Deutsche Bank.
McBride’s parents died several years later. McBride attempted to
assume the loan for the Benicia property as the successor in interest for the
family trust. She alleges that defendants violated her rights under the
California Homeowner Bill of Rights (HBOR; Civ. Code,2 § 2923.4 et seq.)
when they denied her loan assumption application despite her
creditworthiness, and failed to provide information about the loan and
foreclosure-prevention alternatives.
In the months following defendants’ denial of McBride’s loan
assumption application, defendant National Default Servicing Corporation
became the successor trustee to the Deed and executed and recorded a
“Notice of Default and Election to Sell under Deed of Trust.”
McBride sued defendants for violating former section 2920.7 and
section 2923.7 of the HBOR. At the time she first filed suit in April 2018,
former section 2920.7 set forth a mortgage servicer’s obligations to a
successor in interest to real property following the borrower’s death. It also
provided the successor in interest with the same rights under section 2923.7
All statutory references are to the Civil Code, unless otherwise
2
indicated.
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as those afforded to the borrower. (Former § 2920.7, subds. (a)–(d), (e)(1);
§ 2923.7.)
While McBride’s HBOR claims were pending, section 2920.7 expired
per that statute’s sunset provision. Defendants demurred on the ground that
the Legislature’s repeal of section 2920.7 was fatal to McBride’s HBOR
claims. McBride argued she had adequately stated a section 2920.7 claim
because it was irrelevant that the statute had sunset. The trial court agreed
with defendants, sustained the demurrer without leave to amend, and
dismissed the action. This appeal followed.
II.
DISCUSSION
We review an order sustaining a demurrer de novo, exercising our
independent judgment as to whether, as a matter of law, the complaint states
a cause of action. (See Lazar v. Hertz Corp. (1999) 69 Cal.App.4th 1494,
1501.) We assume the truth of all material factual allegations together with
those matters subject to judicial notice. However, we will not assume the
truth of contentions or conclusions of fact or law. Where the demurrer was
sustained without leave to amend, we decide whether there is a reasonable
possibility that the defect can be cured by amendment. The burden of
proving the reasonable possibility is on the plaintiff. (Blank v. Kirwan (1985)
39 Cal.3d 311, 318.)
A. The Section 2920.7 Claim
We first determine whether the trial court erred in dismissing
McBride’s section 2920.7 claim based on the statutory repeal rule.
Section 2920.7 provided the basis for McBride’s first claim, in which she
alleged that defendants improperly denied her request to assume the loan,
and that defendants improperly recorded a notice of default on the property
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in Benicia. Section 2920.7 also gave her standing for her second claim,
brought under section 2923.7, in which McBride alleged that the mortgage
servicer failed to provide a single point of contact as required by that statute.
Consequently, our starting point is deciding whether the trial court properly
analyzed section 2920.7’s sunset provision.
When McBride initiated her action, section 2920.7, former
subdivision (n) stated: “This section shall remain in effect only until
January 1, 2020, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2020, deletes or extends that date.”
(Stats. 2016, ch. 838, § 2.) Senate Bill No. 1183 (2017–2018 Reg. Sess.) later
amended section 2920.7, but kept the identical repeal language and date in
the statute, only moving it to subdivision (o). (Stats. 2018, ch. 136, § 1;
former § 2920.7, subd. (o).) Thus, since January 1, 2017, section 2920.7 has
contained language explicitly identifying the date on which it would be
repealed. Our research has not revealed, and neither party contends, that
the Legislature enacted a new statute. We are therefore concerned only with
the effect of the sunset provision on McBride’s section 2920.7 case, which was
pending when the statute expired on January 1, 2020.
McBride argues the trial court erroneously dismissed her
section 2920.7 claim for two reasons: First, she argues that the statute was
not repealed, and second, that a saving clause preserved her claim. We
disagree on both counts.
McBride first argues that her section 2920.7 claim is still valid because
the statute expired pursuant to a sunset provision, rather than being
repealed. McBride does not distinguish between the two. By its clear terms,
the statute was automatically repealed on January 1, 2020, and it is of no
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material difference here whether McBride characterizes that language as a
sunset provision or a repeal provision.
The rule regarding causes of action based on a repealed statute is well
established: Even if the action is pending, the claims that are wholly
dependent on a statute are abated by the repeal unless there is a saving
clause. (Younger v. Superior Court (1978) 21 Cal.3d 102, 109.) “ ‘ “The
justification for this rule is that all statutory remedies are pursued with full
realization that the legislature may abolish the right to recover at any
time.” ’ ” (Ibid.) As the trial court recognized, this principle is codified in
Government Code section 9606, which states: “Any statute may be repealed
at any time, except when vested rights would be impaired. Persons acting
under any statute act in contemplation of this power of repeal.” If parties are
presumed to know that a statute may be repealed at any time, they are on
even greater notice when, as here, a statute expressly states its tentative
date of repeal. (Beckman v. Thompson (1992) 4 Cal.App.4th 481, 489
(Beckman).)
In Beckman, the appellate court applied the statutory repeal rule to
Code of Civil Procedure section 410.30, the inconvenient forum statute. In
1986, the Legislature temporarily modified that statute, making it easier for
courts to dismiss an action if substantial justice warranted that the matter be
heard outside of California. That amendment was temporary, however, and
the last paragraph provided that it would “ ‘remain in effect only until
January 1, 1992, and as of that date is repealed, unless a later enacted
statute . . . deletes or extends that date.’ ” (Beckman, supra, 4 Cal.App.4th at
p. 487, citing Stats. 1986, ch. 968, § 4, p. 3347.) The trial court dismissed the
case consistent with the amendment’s last paragraph, and the order was
appealed. Finding that the temporary provision was repealed by its own
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terms while the appeal was pending, the Court of Appeal applied the law as it
was before 1986. It held that where a right does not exist at common law but
is dependent on a statute, that statute’s repeal without a saving clause
destroys that right, unless it has been reduced to a final judgment.
(Beckman, at p. 489; see also Graczyk v. Workers’ Comp. Appeals Bd. (1986)
184 Cal.App.3d 997, 1006–1007.) The reviewing court must decide the case
under the law that is in effect when its decision is rendered. (Physicians
Com. for Responsible Medicine v. Tyson Foods, Inc. (2004) 119 Cal.App.4th
120, 125.)
Here, McBride’s two causes of action are wholly dependent on HBOR
statutes and have no common law basis. The statute upon which her claims
rest was repealed while her case was pending. Indeed, the statute expired
even before her case had an operative complaint, precluding any argument
that there had been a final judgment. McBride appears to argue that her
claims should survive because they were brought before section 2920.7 was
repealed. As discussed above, that argument must fail. McBride also
distinguishes between a statute that is repealed by a sunset provision, with
one that is effectively repealed by new legislation that contains terms that
are irreconcilable with the older statute. (Governing Board v. Mann (1977)
18 Cal.3d 819, 828.) She argues that the latter situation indicates a
legislative intent to apply the new legislation retroactively. However, the
statute at issue here was not replaced with new statutory language and it
does not contain any provision for retroactive application. We note that the
repeal of a statutory right is distinct from the retroactive application of a
statute. (Physicians Com. for Responsible Medicine v. Tyson Foods, Inc.,
supra, 119 Cal.App.4th at p. 125.) And a repeal may be applied to pending
actions without triggering retroactivity concerns. (Zipperer v. County of
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Santa Clara (2005) 133 Cal.App.4th 1013, 1023.) We are not persuaded by
McBride’s retroactivity argument.
McBride argues for the first time in her reply brief that her rights had
vested under section 2920.7 at the time of the repeal. She has forfeited this
argument since she failed to raise it in her opening brief. (Nolte v. Cedars-
Sinai Medical Center (2015) 236 Cal.App.4th 1401, 1410.) Even assuming
that the argument was timely made, it is still unavailing. McBride asserts
that her rights under section 2920.7 vested when she notified defendants of
her mother’s death. But a statutory remedy does not vest until final
judgment, even in cases where a party has asserted a valid claim before the
repeal. (South Coast Regional Com. v. Gordon (1978) 84 Cal.App.3d 612,
619.) When section 2920.7 was extinguished, any right McBride had to
assume the loan had not been perfected and there had been no final
judgment. She cannot be said to have had a vested interest. (Napa State
Hospital v. Flaherty (1901) 134 Cal. 315, 317.)
We conclude that the sunset provision in section 2920.7 eliminated
McBride’s rights under that statute absent a saving clause, and that the trial
court committed no error on this point.3
3 In her reply brief, McBride argues that the repealed HBOR statutes
govern events that occurred before they were repealed, citing for the first
time to three federal district court decisions. We conclude that she has
forfeited this argument because she failed to raise it in her opening brief, and
the cited decisions are not binding. (Nolte v. Cedars-Sinai Medical Center,
supra, 236 Cal.App.4th at p. 1410; People v. Neer (1986) 177 Cal.App.3d 991,
1000–1001.) Moreover, the cited decisions concern the statute which barred
mortgage servicers from recording a notice of default while the borrower’s
loan modification application was pending, former section 2923.6,
subdivision (c). That statute has its own legislative history, distinct from the
statute at issue here, and is not relevant to this matter.
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McBride’s second argument asserts that Senate Bill No. 818 (2017–
2018 Reg. Sess. (Senate Bill 818) contains a saving clause applicable to
section 2920.7. (Stats. 2018, ch. 404, § 26.) Again, we disagree.
When the Legislature repeals a statute but intends to save the rights of
litigants in pending actions, it may include a saving clause in the repealing
act or in contemporaneous legislation. (Bourquez v. Superior Court (2007)
156 Cal.App.4th 1275, 1284.) The saving clause need not be express. But at
a minimum the Legislature must “demonstrate its intention with sufficient
clarity that a reviewing court can discern and effectuate it.” (In re Pedro T.
(1994) 8 Cal.4th 1041, 1048–1049.)
Senate Bill 818 does not demonstrate a legislative intent to save
pending claims brought under section 2920.7. Specifically, sections 25 and 26
of Senate Bill 818 contain saving clauses. (Stats. 2018, ch. 404, §§ 25, 26.)
Neither saving clause is relevant here. Section 25 preserves claims arising
under various sections being repealed or amended by Senate Bill 818 which,
notably, does not include section 2920.7. (Stats. 2018, ch. 404, § 25; see id.,
§§ 1–24.) Section 26 saves claims brought under statutes enacted by Senate
Bill No. 900 (2011–2012 Reg. Sess.) or Assembly Bill No. 278 (2011–2012 Reg.
Sess.). (Stats. 2018, ch. 404, § 26.) But section 2920.7 was not enacted by
either of those—it was enacted by Senate Bill No. 1150 (2015–2016 Reg.
Sess.). (Stats. 2016, ch. 838, § 2.) Thus, section 2920.7 does not fall within
the scope of the saving clause in section 26 of Senate Bill 818.
Without a saving clause, the repeal of section 2920.7 abated McBride’s
first cause of action and she has not shown a reasonable possibility that these
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defects can be cured. The trial court did not err in sustaining defendants’
demurrer without leave to amend.4
B. The Section 2923.7 Claim
McBride argues that she sufficiently stated a cause of action under
section 2923.7. We agree with defendants that McBride does not have
standing to assert this claim as a successor in interest.
Section 2923.7 sets forth the rights of a “ ‘borrower,’ ” which it defines
as a natural person who is a “mortgagor or trustor.” (§ 2920.5, subd. (c)(1).)
McBride does not allege facts in her complaint showing that she is the
mortgagor or trustor. She alleges only that she is the successor trustee or the
successor in interest to the borrowers, her deceased parents. Under the plain
language of the statute, McBride does not qualify as the “borrower” entitled
to the protections offered by that statute.
Nevertheless, McBride argues that she has standing because former
section 2920.7 provided that a successor in interest had the same rights as a
borrower under section 2923.7. (Former § 2920.7, subd. (e)(1).) As discussed
above, the Legislature repealed section 2920.7 without a saving clause. That
extinguished McBride’s rights as a successor in interest, with the result that
she does not have standing for purposes of section 2923.7.
McBride has not demonstrated that the trial court erred in sustaining
defendants’ demurrer without leave to amend to her second cause of action
for violations of section 2923.7.
4 Since we find that the repeal of section 2920.7 abated McBride’s
claim, we do not reach her argument that she alleged sufficient facts to state
a claim under that statute.
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C. Section 2924, Subdivision (c) Claim
At the end of her reply brief, for the first time, McBride asks this court
to reinstate her claim under section 2924, subdivision (c). We decline to
address an issue that was not raised in the opening brief. (Nolte v. Cedars-
Sinai Medical Center, supra, 236 Cal.App.4th at p. 1410.)
III.
DISPOSITION
The order sustaining defendants’ demurrer is affirmed.
EAST, J.
WE CONCUR:
HUMES, P. J.
BANKE, J.
A161487
McBride v. National Default Servicing Corporation
 Judge of the San Francisco Superior Court, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.
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