Fenske v. Wells Fargo Bank CA3 ( 2014 )

Filed 5/8/14 Fenske v. Wells Fargo Bank CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Nevada)
----
ANNA MICELI FENSKE,
Plaintiff and Appellant, C068010
v. (Super. Ct. No. 75157)
WELLS FARGO BANK, N.A., et al.,
Defendants and Respondents.
Robert and Anna Fenske borrowed money from Wells Fargo Bank, N.A. to
finance the purchase of a house. After defaulting on the loan, Anna sued Wells Fargo
Bank, N.A. and Wells Fargo Home Mortgage, Inc. (collectively Wells Fargo), asserting
causes of action for cancellation of the loan documents, fraud, quiet title, declaratory
relief, and injunctive relief. Anna claims Wells Fargo gave the Fenskes a loan with terms
different from those initially represented, and that Wells Fargo induced the Fenskes to
1
sign loan documents by falsely promising to change the terms of the loan after the close
of escrow.
The trial court denied Anna’s motion to amend her complaint, and granted Wells
Fargo’s motion for summary judgment.
Anna now contends the trial court erred in granting Wells Fargo’s motion for
summary judgment and abused its discretion in denying her motion to amend the
complaint. She claims (1) she did not subsequently ratify the Wells Fargo loan by
making payments on the loan and by affirming the loan in her bankruptcy petition;
(2) she can prove Wells Fargo’s fraudulent conduct caused the Fenskes to default on the
loan; (3) it is appropriate for her to seek cancellation of the loan documents without
returning the loan proceeds; and (4) she should have been permitted to amend her
complaint to add Placer Title Company and escrow officer Michelle Szura as
defendants.1
We conclude (1) the trial court did not err in ruling that Anna ratified the loan;
(2) it does not matter whether Anna can raise a triable issue of fact with regard to
causation because she subsequently ratified the loan; (3) because Anna’s cause of action
for cancellation of the loan documents is based on fraud in the inducement, she cannot
cancel the loan documents without returning the loan proceeds to Wells Fargo; and
(4) the trial court did not abuse its discretion in denying Anna’s motion for leave to
amend, because she knew about the title company and the escrow officer before she filed
her original complaint.
We will affirm the judgment.
1 Anna also argues that she has standing to sue. Wells Fargo does not challenge Anna’s
standing.
2
BACKGROUND
The background is taken from the evidence submitted in support of, and in
opposition to, Wells Fargo’s motion for summary judgment or summary adjudication,
along with the reasonable inferences that may be drawn from that evidence, viewed in the
light most favorable to Anna. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4th 826,
843 (Aguilar).)
The Fenskes applied to Wells Fargo for a residential loan to purchase a house in
Grass Valley (the property). They worked with loan officer Jason Boyd to obtain the
loan. Boyd told the Fenskes they would get one loan, which would be a “fixed,
conventional 30-year” loan. Boyd also represented that after 12 months the Fenskes
could refinance their loan.
The Fenskes signed a purchase contract for the property and opened escrow with a
deposit of $500. Escrow was set to close on November 10, 2006. However, Placer Title
Company advised the Fenskes that loan documents had not been received by the closing
date. When the Fenskes visited the office of Placer Title Company on November 16,
2006, to sign documents, they were advised that the documents for the Wells Fargo loan
had not arrived, but the documents for a second loan were ready and the Fenskes should
sign those first. That was the first time Anna learned there would be two loans. The
Fenskes refused to sign any documents until they spoke with Boyd to make sure they
were getting the loan Boyd qualified them for. Anna called Boyd and left telephone
messages for him, but received no response.
Placer Title Company asked the Fenskes to sign documents at its office on
November 22, 2006. On that occasion, the Fenskes were again presented with documents
relating to a second loan. Anna tried to contact Boyd several times but received no
response. The escrow officer asked the Fenskes to sign the papers “to get started.” She
said “we could fix everything later with Wells Fargo when she got the first mortgage
papers.” The Fenskes signed the loan papers presented to them based on the escrow
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officer’s representation that nothing was final until the papers for the “first loan” were
signed. But when Anna saw an application which overstated her income and contained
incorrect information about debts, the Fenskes stopped signing documents and left the
Placer Title Company office.
The Fenskes returned to the Placer Title Company office on November 27, 2006,
when they received word that all of the loan documents had arrived. When Anna noticed
that some of the documents were dated November 16, she demanded to speak to
“someone in authority” at Wells Fargo. Anna learned on that date that Boyd was no
longer with Wells Fargo. Anna spoke with a loan officer named Curtis King. The
Fenskes complained to King that the loan documents contained terms different from
those they were promised. Anna told King she and Robert did not want a second loan.
But Anna understood from the conversation with King that she and Robert had no choice
but to accept the second loan. King said the Fenskes had to sign the paperwork as
presented and King would “see to it” that “it would all get changed later to meet the
terms” the Fenskes had been promised. King said the Fenskes would sign a power of
attorney that would allow Wells Fargo to change the loan to correct any typos or
mistakes.
The Fenskes’ lease had expired and they had no place to which they could move.
Anna overheard the escrow officer’s heated telephone conversation with the seller about
why the Fenskes had not signed the escrow papers. The escrow officer told the Fenskes
they would be in default if they did not proceed with the purchase. The Fenskes began
signing documents because of King’s statements to them and the pressure they felt.
The documents Anna signed were loose; none of the pages were stapled or clipped
together. The escrow officer presented the Fenskes with only those pages that required
their signature, did not explain the nature of any document to them, and did not allow
them the time to read through the documents.
4
Robert knew at the time escrow closed that he and Anna got two loans. The
buyer/borrower estimated settlement statement showed the purchase of the property was
financed by a $500 deposit from the Fenskes, a loan of $358,400 from Wells Fargo, and a
loan of $89,600 from an entity called DB Home Lending. Anna acknowledged she and
Robert received two loans, one from Wells Fargo and the second from an entity called
DB Home Lending. But she says she did not know the terms of the loans.
A few days after the Fenskes signed escrow papers, King contacted Anna to ask
her to sign a new loan application for the second loan. Anna refused. When Anna asked
about changing the terms of the loan, King told her not to worry, “it’s being taken care
of.” But King did not contact Anna again and Anna never received amended loan
documents from Wells Fargo.
The Fenskes obtained title to the property on November 30, 2006. On the same
date, a deed of trust granting Wells Fargo Bank, N.A. a security interest in the property
for a loan of $358,400, plus interest, was recorded in Nevada County. Anna claims the
initials and signature for her on that deed of trust are forged.
Wells Fargo contends the Fenskes signed a promissory note in the principal sum
of $358,400, obligating them to make monthly payments beginning on January 1, 2007.
Anna contends she did not sign that promissory note.
According to Anna, King had promised that her concerns would be addressed, but
she realized there was still a problem when she received the first loan statement from
Wells Fargo. The statement referenced two loans, not the single loan that Boyd said the
Fenskes would get. And the amount of the monthly payments on the first and second
loans was a little over $1,000 more than the amount Boyd quoted. Anna realized Wells
Fargo did not correct the terms of her loan as King had promised. She contacted Wells
Fargo but received “no meaningful information.”
Nevertheless, the Fenskes made the full monthly payments to Wells Fargo
beginning in January 2007. The Fenskes lived at the property and planned to refinance
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their loan later at a more favorable rate. The Fenskes made about 12 payments on the
Wells Fargo loan. Wells Fargo Bank, N.A.’s interest in the note and deed of trust was
transferred to Wells Fargo Home Mortgage, Inc. Anna admits that she made loan
payments to Wells Fargo Home Mortgage, Inc.
Making the monthly payments was difficult for the Fenskes and they were
sometimes unable to pay other expenses. The Fenskes unsuccessfully attempted to
refinance their loan in 2007.
Anna was laid off from one of her jobs in December 2007 and the Fenskes
separated in January 2008. Robert moved out of the property and stopped contributing to
the monthly mortgage payments after January 2008. Anna could not continue full
payments by herself.
Anna stopped making payments on the Wells Fargo loan in February 2008. She
asked Wells Fargo for a loan modification. At that time, she still believed she had a
“conventional” fixed rate loan. According to Anna, Wells Fargo said she could modify
the loan and strung her along for months.
Anna received a notice of default from Wells Fargo in May 2008. In late August
2008, Glendora Hudson, a Wells Fargo consumer service representative, told Anna the
Wells Fargo loan was not a 30-year fixed rate loan; rather, it was a loan with interest only
payments for the first five years and higher payments beginning in 2012.2 Anna was
informed that the loan could not be modified.
On December 11, 2008, Anna filed a petition for bankruptcy. Robert filed a
separate bankruptcy petition. Anna’s petition listed Wells Fargo and Ocwen, a successor
2 To the extent Anna contends the Wells Fargo loan is an adjustable rate loan, the
promissory note Wells Fargo submitted in support of its motion shows the Fenskes
received a 30-year, fixed rate loan. Anna fails to show the existence of a disputed
material fact in this regard.
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in interest to the second loan, as creditors. She said she intended to keep the property and
reaffirm the debts owed to Wells Fargo and Ocwen. Anna disclosed a potential workers’
compensation claim but did not disclose any other claims.
Anna was granted a discharge in bankruptcy on March 26, 2009. A final decree
ordering the bankruptcy estate closed was filed on April 29, 2009. Less than three
months later, Anna initiated this lawsuit against Wells Fargo.
About two and a half months before the trial date, Anna sought leave to amend her
first amended complaint to add Placer Title Company and escrow officer Michelle Szura
as defendants. Wells Fargo opposed the motion. The trial court denied the motion,
ruling that the motion was filed and served late, and that Anna did not show that the
identities of Placer Title Company and Szura were unknown to her at the time she filed
her original complaint.
Wells Fargo moved for summary judgment or, in the alternative, summary
adjudication, arguing that Anna ratified the loan, she cannot establish a cause of action
for cancellation because she never offered to restore the consideration she received from
Wells Fargo, and she cannot establish that Wells Fargo caused her alleged damages. The
trial court agreed with Wells Fargo and granted the motion for summary judgment.
STANDARD OF REVIEW
A defendant moving for summary judgment or summary adjudication may
demonstrate that the plaintiff’s cause of action has no merit by showing that (1) one or
more elements of the cause of action cannot be established, or (2) there is a complete
defense to that cause of action. (Code Civ. Proc., § 437c, subds. (a), (f)(1), (p)(2);
Aguilar, supra, 25 Cal.4th at p. 849.) Such a showing must be supported by evidence,
such as affidavits, declarations, admissions, interrogatory answers, depositions, and
matters of which judicial notice must or may be taken. (Code Civ. Proc., § 437c,
subd. (b)(1); Aguilar, supra, 25 Cal.4th at pp. 850, 855.)
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After the defendant meets its threshold burden, the burden shifts to the plaintiff to
present evidence showing that a triable issue of one or more material facts exists as to
that cause of action or affirmative defense. (Code Civ. Proc., § 437c, subd. (p)(2);
Aguilar, supra, 25 Cal.4th at p. 850.) The plaintiff may not simply rely on the allegations
of its pleadings but, instead, must set forth the specific facts showing the existence of a
triable issue of material fact. (Code Civ. Proc., § 437c, subd. (p)(2).) A triable issue of
material fact exists if, and only if, the evidence reasonably permits the trier of fact to find
the contested fact in favor of the plaintiff in accordance with the applicable standard of
proof. (Aguilar, supra, 25 Cal.4th at p. 850.) From commencement to conclusion,
however, the moving defendant bears the burden of persuasion that one or more elements
of the cause of action in question cannot be established or that there is a complete
defense. (Ibid.)
In ruling on the motion, the trial court must consider all of the evidence set forth in
the papers, except that to which objections have been made and sustained by the trial
court, and all inferences reasonably deducible from the evidence. (Code Civ. Proc.,
§ 437c, subd. (c).) The trial court views the evidence and inferences therefrom in the
light most favorable to the opposing party, liberally construing the opposing party’s
evidence while strictly scrutinizing the moving party’s showing and resolving any
evidentiary doubts or ambiguities in favor of the opposing party. (Aguilar, supra,
25 Cal.4th at p. 843; Saelzler v. Advanced Group 400 (2001) 25 Cal. 4th 763, 768
(Saelzler).) The trial court must determine what the evidence or inference could show or
imply to a reasonable trier of fact. (Aguilar, supra, 25 Cal.4th at p. 856.) If the trial
court concludes that the evidence or inferences raise a triable issue of material fact, it
must deny the defendant’s motion. (Ibid.) But the trial court must grant the defendant’s
motion if all the papers submitted show that there is no triable issue as to any material
fact and that the moving party is entitled to a judgment as a matter of law. (Code Civ.
Proc., § 437c, subd. (c).)
8
We review an order granting summary judgment or summary adjudication de
novo. (Aguilar, supra, 25 Cal.4th at p. 860.) We independently examine the record to
determine whether a triable issue of material fact exists. (Saelzler, supra, 25 Cal.4th at
p. 767.)
DISCUSSION
I
Anna contends she did not subsequently ratify the Wells Fargo loan by making
payments on the loan and by affirming the loan in her bankruptcy petition.
Wells Fargo moved for summary judgment based on ratification. According to
Anna, ratification requires that the principal have full knowledge of all of the facts. She
says there are triable issues of fact as to whether she knew her rights, or what had been
done in her name, when she made the loan payments to Wells Fargo or affirmed the debt
in the bankruptcy proceeding.
“Ratification is the voluntary election by a person to adopt in some manner as his
own an act which was purportedly done on his behalf by another person, the effect of
which, as to some or all persons, is to treat the act as if originally authorized by him.”
(Rakestraw v. Rodrigues (1972) 8 Cal. 3d 67, 73 (Rakestraw).) Ratification may be
express or by conduct which is inconsistent with any reasonable contention other than
that the person intended to approve and adopt the act. (Id. at p. 73; Common Wealth Ins.
Systems, Inc. v. Kersten (1974) 40 Cal. App. 3d 1014, 1026.) It requires knowledge of the
material facts. (Rakestraw, supra, 8 Cal.3d at p. 74; Golinsky v. Allison (1896) 114 Cal.
458, 461.) But voluntary retention of benefits of the transaction with knowledge of the
unauthorized nature of the act also constitutes ratification. (Common Wealth Ins.
Systems, Inc. v. Kersten, supra, 40 Cal.App.3d at p. 1026.)
9
Here, with the loan proceeds from Wells Fargo, the Fenskes obtained title to the
property in 2006.3 They also received over $1,300 at the close of escrow. Anna
continued to live at the property after the payments stopped. Thus, Anna derived benefits
from the loan transaction she now seeks to set aside, and retained those benefits even
after she was aware the loan proceeds came from a transaction she asserts is improper.
In addition, the Fenskes made full payments on the loan for many months. Anna’s
bankruptcy petition acknowledged that Wells Fargo held a mortgage for $358,400
secured by the property, and she did not identify the causes of action against Wells Fargo
in her bankruptcy petition.
Anna complains that the loan she received was not the loan for which she applied,
and was not the loan that was promised. But Anna knew that fact when she received the
first loan statement, and yet she continued to make monthly payments and continued to
retain the benefits of the loan.
Anna argues that she continued to make payments because she believed, based on
King’s promise, that Wells Fargo would correct the loan terms. She says she made the
mortgage payments in order to mitigate her losses. But she does not provide a record
citation for the asserted facts. (Duarte v. Chino Community Hospital (1999)
72 Cal. App. 4th 849, 856.) Our review of the record indicates that the Fenskes elected to
make the full monthly loan payments to Wells Fargo until they could obtain a new loan.
3 Although Anna said she disputed the facts set forth in Wells Fargo’s separate
statement, her response often did not refute Wells Fargo’s asserted facts. For example, in
separate statement of fact No. 2, Wells Fargo said the Fenskes used the loan from Wells
Fargo to buy the property. Anna disputed that fact, but in response said the loan and its
terms were procured by fraud and that Boyd represented the Fenskes would receive one
loan for the full purchase price of the property. Anna then identifies five documents
containing forged signatures. None of Anna’s stated facts contradicts Wells Fargo’s
statement that the Fenskes used the proceeds from the Wells Fargo loan to purchase the
property.
10
Ratification of the loan transaction in part constitutes a ratification of the entire
transaction. (Rakestraw, supra, 8 Cal.3d at p. 76; see also Reusche v. California Pac.
Title Ins. Co. (1965) 231 Cal. App. 2d 731, 737 (Reusche) [“A principal cannot split an
agency transaction and accept the benefits thereof without the burdens.”].) On this
record, the trial court did not err in ruling that Anna ratified the Wells Fargo loan.
II
Anna next contends she can prove Wells Fargo’s fraudulent conduct caused the
Fenskes to default on the loan.
Although Anna’s second cause of action is titled “fraud and statutory violations,”
it is really a claim for fraud. It does not state any claim under the Truth in Lending Act
(15 U.S.C. § 1601 et seq.) or the Real Estate Settlement Procedures Act (12 U.S.C.
§ 2601 et seq.).
In any event, it does not matter whether Anna can raise a triable issue with regard
to causation, because as we have explained in part I, ante, Anna subsequently ratified the
loan. We treat the loan as if originally authorized by the Fenskes as a result of the
ratification. (Rakestraw, supra, 8 Cal.3d at p. 73.) Accordingly, her appellate contention
lacks merit.
III
Anna further argues it is appropriate for her to seek cancellation of the loan
documents without returning the loan proceeds.
California law distinguishes between fraud in the execution of a contract and fraud
in the inducement of a contract. (Rosenthal v. Great Western Fin. Securities Corp.
(1996) 14 Cal. 4th 394, 415.) Fraud in the execution of a contract occurs when the
plaintiff is deceived as to the nature of her act and does not know what she is signing or
does not intend to enter into a contract at all. (Ibid.) In such case, the contract is void.
Fraud in the inducement, by contrast, occurs when the plaintiff knows what she is signing
but her consent is induced by fraud. (Ibid.) In that case, a contract is formed but is
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voidable by reason of the fraud. (Ibid.; Village Northridge Homeowners Assn. v. State
Farm Fire & Casualty Co. (2010) 50 Cal. 4th 913, 921.)
An action to cancel a written instrument is equitable in nature. (11A Cal.Jur.3d
(2007) Cancellation and Reformation, § 1, p. 9.) In general, a plaintiff who chooses to
maintain an action to cancel an instrument tainted by fraud must return the value of the
property she has received. (Buena Vista F. & V. Co. v. Tuohy (1895) 107 Cal. 243, 253-
256; Red Jacket Tribe v. Gibson (1886) 70 Cal. 128, 131; Loud v. Luse (1931) 214 Cal.
10, 13-14.) The rule requiring the plaintiff to restore benefits received applies to the
cancellation of a contract that is voidable. (Fleming v. Kagan (1961) 189 Cal. App. 2d
791, 797; 11A Cal.Jur.3d, supra, Cancellation and Reformation, § 26, pp. 44-45.) The
rule does not apply to the cancellation of an instrument that is void. (Meyer v. Haas
(1899) 126 Cal. 560, 562-563; Smith v. Williams (1961) 55 Cal. 2d 617, 620-621;
Fleming v. Kagan, supra, 189 Cal.App.2d at p. 797; 11A Cal.Jur.3d, supra, Cancellation
and Reformation, § 27, p. 46.)
In her first cause of action, Anna seeks to cancel the Wells Fargo promissory note
and deed of trust. While she says the signatures for her and Robert on the loan
application were forged,4 Anna acknowledges she and Robert applied for a home loan
with Wells Fargo. The Fenskes obtained a loan with Wells Fargo. Anna benefited from
that loan. Anna, thus, does not claim that she did not know she signed documents to
borrow money from Wells Fargo or that she did not intend to take a loan from Wells
Fargo. She claims instead that prior to the close of escrow, King said he would change
4 Anna also says the signatures on a document relating to closing instructions for the
second loan for $89,600, a deed of trust in favor of DB Home Lending, and a “Balloon
Note” are forged. It is unclear from the referenced deposition testimony whether the
balloon note relates to the Wells Fargo loan or to the loan from DB Home Lending.
However, the document identified as a balloon note was presented to Anna along with
other documents apparently relating to the DB Home Lending loan.
12
the loan terms to the terms Boyd promised, she and Robert signed the loan documents in
reliance on King’s assurance, but the loan terms were not changed. Accordingly, Anna’s
claim is one for fraud in the inducement. For that reason, the general rule applies
requiring restoration of the benefits received. (Fleming v. Kagan, supra, 189 Cal.App.2d
at p. 797.) Anna does not establish her claim of error because the record contains no
evidence that she tendered or offered to tender the benefits she received pursuant to the
Wells Fargo loan.
We do not address the various contentions in the appellate briefs concerning
rescission because Anna denies her first cause of action is for rescission. For the same
reason, Civil Code section 1693, referenced by Anna’s counsel in her reply brief and at
oral argument, does not apply to this case. Civil Code section 1693 applies to an action
based on rescission.
IV
Anna further contends she should have been permitted to amend her complaint to
add Placer Title Company and escrow officer Michelle Szura as defendants.
About two and a half months before the trial date, Anna moved, pursuant to Code
of Civil Procedure sections 473 and 576, to amend her first amended complaint to name
Placer Title and Szura as defendants in her fraud cause of action. The proposed second
amended complaint would allege that Placer Title Company and Szura knowingly and
falsely represented to the Fenskes that their Wells Fargo loan was a 30-year “fully
amortized” loan, at a fixed interest rate, with monthly payments of $2,128; that Placer
Title Company and Szura induced the Fenskes to sign inaccurate and incomplete loan
documents and generated false loan documents; and that Anna relied on the
representations and was damaged thereby.
Wells Fargo opposed Anna’s motion. Among other things, Wells Fargo argued
that Anna had known the identities of Placer Title Company and Szura since 2006. In her
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reply brief filed in the trial court, Anna did not deny this. The trial court denied Anna
leave to amend.5
Anna claims it was error for the trial court to consider whether she knew the
identities of Placer Title Company and Szura. Anna says the trial court should have
considered whether the proposed amendment would further the interests of justice and
whether Placer Title Company and Szura would suffer prejudice by the proposed
amendment.
The trial court may, in furtherance of justice, and on any terms as may be proper,
allow a party to amend any pleading by adding the name of any party. (Code Civ. Proc.,
§§ 473, subd. (a)(1), 576.) While amendments should be liberally allowed so that all of
the issues may be properly presented, the question whether the filing of an amended
pleading should be allowed is committed to the sound discretion of the trial court. (Code
Civ. Proc., § 473, subd. (a)(1); Emerald Bay Community Assn. v. Golden Eagle Ins. Corp.
(2005) 130 Cal. App. 4th 1078, 1097 (Emerald Bay Community Assn.).)
“Courts must apply a policy of great liberality in permitting amendments to the
complaint at any stage of the proceedings, up to and including trial, when no prejudice is
shown to the adverse party. [Citation.] However, ‘ “even if a good amendment is
proposed in proper form, unwarranted delay in presenting it may -- of itself -- be a valid
reason for denial.” ’ [Citation.]” (Huff v. Wilkins (2006) 138 Cal. App. 4th 732, 746.)
The appropriate exercise of the trial court’s discretion under section 473 “ ‘requires the
trial court to consider a number of factors: “including the conduct of the moving party
and the belated presentation of the amendment. [Citation.] . . . The law is well settled
that a long deferred presentation of the proposed amendment without a showing of
excuse for the delay is itself a significant factor to uphold the trial court’s denial of the
5 We do not discuss the portion of the trial court’s ruling based on inadequate notice
because there is no contention on appeal concerning that issue.
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amendment. [Citation.]” [Citation.]’ ” (Emerald Bay Community Assn., supra,
130 Cal.App.4th at p. 1097, italics omitted.) Appellate courts are less likely to find an
abuse of discretion where amendment is sought after long unexplained delay or where
there is a lack of diligence. (Melican v. Regents of University of California (2007)
151 Cal. App. 4th 168, 175.)
Here, Anna’s trial counsel submitted a declaration in support of Anna’s motion for
leave to amend, stating that the identities of, and the fraud practiced by, Placer Title
Company and Szura were previously unknown to Anna. However, Anna’s original
complaint filed on July 14, 2009 (17 months before Anna filed the motion for leave to
amend), identified Placer Title Company. Anna’s declaration in support of her
application for injunctive relief, filed in the trial court on September 17, 2009, said Placer
Title Company was the title company which handled the escrow on the purchase of the
property. The reply brief Anna filed in the trial court with regard to her motion for leave
to amend did not deny that Anna knew Szura was the escrow officer when she filed her
original complaint in 2009.
With regard to the proposed allegations that Placer Title Company and Szura
knowingly and falsely misrepresented the terms of the Wells Fargo loan and generated
false documents, Anna alleged the verbal representations were made to her just before
and at the time of the closing of escrow, which occurred in November 2006. Anna
alleged in her initial complaint that she discovered she did not have a 30-year fully
amortized fixed rate loan in August 2008 and she had a copy of the promissory note she
now claims was forged in May 2009. In her opposition to Wells Fargo’s motion for relief
from automatic stay, filed on February 3, 2009, Anna said there was evidence of
wrongdoing -- coercion, undue influence, undue pressure, collusion and fraud in
acknowledging the Fenskes’ signatures -- by the escrow officer. Anna suggested the
escrow officer falsely acknowledged that Anna signed the loan origination documents.
Thus, Anna knew of alleged wrongdoing by Szura as early as February 2009. The record
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also contains a declaration from Anna that she first raised the issue of forgery with Wells
Fargo in September 2008, which is more than two years before she sought leave to
amend. Additionally, Anna’s September 2009 declaration for injunctive relief alleged the
signatures on documents including a deed of trust in favor of Wells Fargo were forged.
Anna attached the deed containing the alleged forged signatures to her September 2009
declaration. That deed identifies M. Szura as the person who notarized the Fenskes’
signatures on the deed. Further, as of July 14, 2009, Anna’s attorney had obtained
various “loan documents” from “the title company” and he questioned the authenticity of
the signatures on different documents purportedly signed by Anna in front of the same
notary (Szura) at Placer Title Company. Anna’s initial complaint further alleged that the
escrow officer presented the Fenskes with unstapled papers dated with an earlier date,
which were in no perceivable order, and did not provide the Fenskes copies of documents
that should have been a part of the loan documentation.
There is no explanation in the record why Anna delayed at least 17 months to seek
leave to amend her complaint to name Placer Title Company and Szura as defendants.
Anna has not demonstrated that the trial court abused its discretion in denying her leave
to amend.
DISPOSITION
The judgment is affirmed.
MAURO , J.
We concur:
HULL , Acting P. J.
BUTZ , J.
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