Cisse v. Nationstar Mortgage CA4/1

Filed 1/21/22 Cisse v. Nationstar Mortgage CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
MAMADY B. CISSE, D077878
Plaintiff and Appellant,
v. (Super. Ct. No. 37-2018-
00002731)
NATIONSTAR MORTGAGE LLC,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of San Diego County,
Robert P. Dahlquest, Judge. Affirmed.
Mamady B. Cisse, in pro per., for Plaintiff and Appellant.
Akerman LLP, Justin D. Balser and Katalina Baumann; Troutman,
Pepper Hamilton Sanders and Justin D. Balser, for Defendant and
Respondent.
Mamady B. Cisse appeals from a judgment on his claims against
Nationstar Mortgage LLC (Nationstar) related to a property he owned that
was sold in foreclosure. Cisse is self-represented. In his appellate briefing he
asserts a bankruptcy stay foreclosed the judgment and he asks this court to
enjoin the sale of the property, reverse the judgment, and order sanctions.
Because Cisse raises no viable appellate arguments, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In September 2004, Cisse obtained a mortgage from Plaza Home
Mortgage in the amount of $300,000 that was secured by a deed of trust
recorded against a property located at 17161 Alva Road, Unit 1318 in
San Diego. Nationstar was the most recent servicer of the mortgage, and the
loan was previously serviced by Bank of America, N.A. (Bank of America).
Beginning in 2009, Cisse attempted to obtain a loan modification. He was
not successful while the loan was serviced by Bank of America, but in 2015
was approved for a loan modification by Nationstar. However, he rejected the
modification proposal and two later modification proposals offered by
Nationstar.
During the same timeframe, Cisse defaulted on the mortgage. A notice
of default and election to sell under the deed of trust were recorded on
April 15, 2014. The property was scheduled for a foreclosure sale on
August 29, 2014, but it was postponed as result of Cisse’s bankruptcy filings
and no foreclosure sale pursuant to the deed of trust ever occurred.
On September 20, 2017, the San Diego County Sherriff recorded a
notice of levy against the property on behalf of the homeowners association
(HOA) for the property. The notice of levy was recorded to satisfy a judgment
in favor of the HOA. On December 21, 2017, the sheriff recorded a certificate
of sale for the property stating it had been sold at foreclosure as a result of
the HOA levy, subject to a three month redemption period expiring on
March 19, 2018. On July 18, 2018, the sheriff recorded a sheriff’s deed under
writ of sale conveying title to another individual.
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Prior to the recording of the sheriff’s deed showing the conveyance of
title, on January 18, 2018, Cisse filed the complaint underlying this appeal
against Bank of America1 and Nationstar. Cisse, who was not represented
by counsel, alleged the defendants were liable for not offering a sufficient
loan modification and placing him “in a tenuous position of losing the real
property to a foreclosure . . . .” Cisse asserted causes of action for declaratory
and injunctive relief, violation of the California Homeowner Bill of Rights,
violation of the federal Home Affordable Modification Program, and an
accounting.
After Nationstar demurred, Cisse filed a first amended complaint.
Nationstar answered, and then filed a motion for judgment on the pleadings.
Cisse failed to oppose the motion and did not appear at the hearing. The trial
court granted Nationstar’s motion without leave to amend and judgment was
entered in Nationstar’s favor on August 12, 2020. Cisse timely appealed.
DISCUSSION
Cisse argues in his short opening brief that a bankruptcy petition filed
by a “Co-Owner” of the property, Marlyatou Bah, stayed the proceedings in
the trial court and precluded the judgment against him. Cisse did not make
this argument in the trial court, and the record shows the property at issue
was held only in his name, “as his sole and separate property.” Cisse also
does not explain who Bah is.
Because he did not make this argument in the trial court, it was waived
for purposes of appeal. (Hewlett-Packard Co. v. Oracle Corp. (2021) 65
Cal.App.5th 506, 548.) Further, there is no evidence in the appellate record
to support reversal based on a bankruptcy proceeding for an unknown
1 Bank of America was dismissed from the case after a successful motion
for summary judgment on July 12, 2019, and is not a party to this appeal.
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individual. (See Kendall v. Barker (1988) 197 Cal.App.3d 619, 625 [“ ‘The
appellate court is . . . confined in its review to the proceedings which took
place in the court below and are brought up for review in a properly prepared
record on appeal.’ [Citation.] ‘Statements of alleged fact in the briefs on
appeal which are not contained in the record and were never called to the
attention of the trial court will be disregarded by this court on appeal.’ ”].)
Accordingly, we reject Cisse’s challenge and affirm the judgment.
DISPOSITION
The judgment is affirmed. Respondent to recover costs of appeal.
McCONNELL, P. J.
WE CONCUR:
HUFFMAN, J.
DO, J.
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