Scott v. JPMorgan Chase Bank

Filed 4/16/13
CERTIFIED FOR PARTIAL PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
MICHAEL D. SCOTT,
Plaintiff and Appellant,
A132741
v.
JPMORGAN CHASE BANK, N.A., (Solano County
et al., Super. Ct. No. FCS033424)
Defendants and Respondents.
BY THE COURT:
It is ordered that the opinion filed herein on March 18, 2013, be modified as
follows:
The second sentence in the second paragraph on page one is amended to read:
“In the published portion of our opinion, we conclude that the trial court properly
took judicial notice of the fact and legal effect of the government’s contract with
JPMorgan, since Scott did not allege or argue in the trial court that the contract was
inauthentic or otherwise reasonably subject to dispute.”
This modification effects no change in the judgment.
The petition for rehearing is denied.
Date_____________________ __________________________P.J.
1
Filed 3/18/13 (unmodified version)
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
MICHAEL D. SCOTT,
Plaintiff and Appellant,
A132741
v.
JPMORGAN CHASE BANK, N.A., (Solano County
et al., Super. Ct. No. FCS033424)
Defendants and Respondents.
Michael D. Scott (Scott) appeals from an order sustaining a demurrer to his second
amended complaint without leave to amend. He contends he alleged facts sufficient to
state a cause of action against respondent JPMorgan Chase Bank, N.A. (JPMorgan),
primarily because JPMorgan allegedly did not have standing to foreclose on his property.
He further alleges that the trial court erred in taking judicial notice of facts in a contract
between JPMorgan and the federal government, by which JPMorgan claims to have
obtained a beneficial interest under the deed of trust on Scott’s property without
assuming related liabilities.
Because a direct appeal cannot be taken from an order sustaining a demurrer, we
exercise our discretion to review the trial court’s decision as an appealable final judgment
of dismissal. In the published portion of our opinion, we conclude that the trial court
properly took judicial notice of the fact and legal effect of the government’s contract with
JPMorgan, since Scott made no showing in the trial court that the contract was not
authentic or otherwise argued it was reasonably subject to dispute. We also conclude
*
Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is certified for publication
with the exception of parts II.C. and II.D.
1
that, based on the allegations of the second amended complaint, and in light of the facts
the court judicially noticed, the court did not err in sustaining the demurrer. In the
unpublished portion of our opinion, we conclude that the court did not err in denying
further leave to amend. The judgment will be affirmed.
I. FACTS AND PROCEDURAL HISTORY
Scott received title to certain real property in February 2005. The following
August, he obtained from First Magnus Financial Corporation (Magnus) a $975,000
construction loan, secured by a deed of trust on the property. In November 2007,
Magnus assigned its interest under the deed of trust to Washington Mutual Bank
(WaMu).
A. JPMorgan Becomes Beneficiary Under the Deed of Trust and Forecloses
According to documents judicially noticed by the trial court, the federal
government’s Office of Thrift Supervision (OTS) issued an order on September 25, 2008,
appointing the Federal Deposit Insurance Corporation (FDIC) as the receiver of WaMu.
As set forth in a Purchase and Assumption Agreement between the FDIC and respondent
JPMorgan dated as of September 25, 2008 (P&A Agreement), the FDIC then sold to
JPMorgan “all of the assets” of WaMu (with specified exceptions), but not WaMu’s
liabilities for claims by borrowers.
Scott defaulted on his loan, and in January 2009 the California Reconveyance
Company (CRC), as trustee under the deed of trust, caused the recording of a Notice of
Default and Election to Sell the property. At the time, Scott purportedly owed
$1,046,708.52 under the corresponding note. In April 2009, CRC caused a notice of
trustee’s sale to be recorded, providing notification that the property would be sold in
May 2009.
B. Scott’s Complaint and First Amended Complaint
In April 2009, Scott filed a complaint in this case against JPMorgan (and perhaps
others), but the complaint is not in the appellate record. A first amended complaint, filed
in June 2009, asserted numerous causes of action against JP Morgan, WaMu, Magnus,
2
and Cobs Homes, essentially seeking relief on the ground that Scott had been
fraudulently induced to enter into a subprime loan with Magnus.
JPMorgan filed a motion for judgment on the pleadings, arguing that, under the
P&A Agreement, it did not assume any of WaMu’s liabilities related to Scott’s loan,
JPMorgan complied with applicable provisions of the Civil Code, and Scott did not
tender the amount owed under the note and deed of trust.
In support of its motion, JPMorgan sought judicial notice of: (1) a copy of the
grant deed by which Scott obtained title to the property; (2) a copy of the deed of trust on
the property, recorded August 18, 2005, identifying Magnus as the beneficiary; (3) a copy
of the assignment of the deed of trust from Magnus to WaMu, recorded on November 5,
2007; (4) the OTS order appointing the FDIC as receiver of WaMu; (5) a copy of the
P&A Agreement (attaching excerpts from the agreement and asserting the availability of
its entirety at the FDIC Web site); (6) the notice of default and election to sell, recorded
on or about January 14, 2009; and (7) the notice of trustee’s sale, recorded on or about
April 20, 2009. Judicial notice was sought under Evidence Code sections 451,
subdivision (f), and 452, subdivisions (d), (g), and (h).
Of particular relevance to this appeal are the provisions of the P&A Agreement
regarding the sale of WaMu’s assets to JPMorgan. Section 3.1 of the P&A Agreement
provided that the Assuming Bank (JPMorgan) purchased from the Receiver (FDIC) “all
right, title, and interest of the Receiver in and to all of the assets (real, personal, and
mixed, wherever located and however acquired) . . . of the Failed Bank [WaMu] whether
or not reflected on the books of the Failed Bank as of Bank Closing [September 25,
2008].” (Italics added.) Although Section 3.5 of the P&A Agreement provided that
JPMorgan did “not purchase, acquire or assume, or (except as otherwise expressly
provided in this Agreement) obtain an option to purchase, acquire or assume under this
Agreement the assets or Assets listed on the attached Schedule 3.5,” Schedule 3.5 sets
forth assets not relevant here.
As to WaMu’s liabilities, Section 2.5 of the P&A Agreement provided that
JPMorgan did not assume liability for borrower claims related to loans, or commitments
3
to lend, made by WaMu, held by WaMu, or purchased by WaMu. Specifically,
Section 2.5 reads: “Borrowers’ Claims. Notwithstanding anything to the contrary in
this Agreement, any liability associated with borrower claims for payment of or liability
to any borrower for monetary relief, or that provide for any other form of relief to any
borrower, whether or not such liability is reduced to judgment, liquidated or unliquidated,
fixed or contingent, matured or unmatured, disputed or undisputed, legal or equitable,
judicial or extra-judicial, secured or unsecured, whether asserted affirmatively or
defensively, related in any way to any loan or commitment to lend made by the Failed
Bank [WaMu] prior to failure [September 25, 2008], or to any loan made by a third party
in connection with a loan which is or was held by the Failed Bank, or otherwise arising in
connection with Failed Bank’s lending or loan purchase activities are specifically not
assumed by the Assuming Bank [JPMorgan].”
Scott filed an opposition to JPMorgan’s motion and boilerplate objections to its
request for judicial notice, asserting generally that the documents did not fall within the
cited Evidence Code provisions. He did not dispute that the P&A Agreement attached to
the judicial notice request and published on the FDIC’s Web site was authentic, accurate,
and complete.
In November 2010, the trial court granted JPMorgan’s motion for judgment on the
pleadings, with leave to amend.
C. Scott’s Second Amended Complaint
Later in November 2010, Scott filed his second amended complaint against
JPMorgan and the other defendants sued in the first amended complaint. He asserted
essentially the same causes of action, but added some allegations as to JPMorgan,
contending: the assignment of the deed of trust from Magnus to WaMu was invalid
because the notary had no record of notarizing it; JPMorgan did not complete the transfer
of the “[WaMu] assets from the FDIC to [JPMorgan],” so JPMorgan had no interest in
the property; and yet JPMorgan employees spoke with Scott before and after JPMorgan
“acquired the certain assets and liabilities of [WaMu] from the FDIC.”
4
1. Scott’s Causes of Action
The vast majority of Scott’s purported causes of action are expressly based on
fraud and other wrongdoing allegedly perpetrated to induce Scott to enter into the loan in
August 2005, before JPMorgan obtained an interest in the property. By cause of action,
Scott alleges: (1) violation of Business and Professions Code section 17200, based on
defendants’ untrue or misleading statements (regarding the terms and payment
obligations, prepayment penalty, home value and ability to refinance, and nonreceipt of
kickbacks and the like) and their failure to consider Scott’s ability to pay; (2) violation of
Financial Code section 4973 (“predatory lending”) by acts perpetrated by Magnus,
including approving construction loans to uninformed buyers, encouraging the use of
false documentation to qualify unqualified borrowers for a loan, and making false
statements; (3) fraud, based on statements made to Scott “in the origination of the [loan]”
regarding the loan terms and value of his property; (4) breach of the implied covenant of
good faith and fair dealing in the negotiation of the loan; (5) conversion, by inducing
Scott to agree to the loan and inflating the value of his property to justify a larger
mortgage and compel unjust monthly payments; (6) quiet title, seeking invalidation of the
deed of trust due to fraud and undue influence employed to get Scott to take out the loan;
(7) fraud in the inducement, based on promises made to induce Scott to agree to the loan;
(8) unfair business practices, based on “fraudulent acts, business model or change of
underwriting standards”; (9) breach of mortgage brokers’ fiduciary duties in connection
with Scott’s entry into the loan; (12) “civil conspiracy” in the origination of the loan ;
(13) “aiding and abetting,” in that all defendants knew and encouraged what every other
defendant did in regard to the origination of the loan; (14) unlawful joint venture, in an
agreement to originate, purchase, assign, sell and transfer the loan; and (16) racial
discrimination in regard to the financing Scott was provided .
The tenth cause of action – entitled “Wrongful Foreclosure” – contends that the
foreclosure proceedings should be stopped (even though the property had already been
sold) due to the defendants’ “reprehensible conduct throughout this transaction.” More
particularly, Scott alleges that the foreclosure was wrongful in two respects. First, in
5
paragraph 104, he contends JPMorgan had no right to foreclose because there was no
valid loan due to the alleged fraud in the origination process. Second, in paragraphs 105
through 107, he alleges JPMorgan had no right to foreclose because the “Notice of
Default was defective,” the amount stated as due and owing in the Notice of Default was
incorrect, and interest was overcharged.
Lastly, the fifteenth cause of action for injunctive relief, and the eighteenth cause
of action for unjust enrichment (there is no eleventh or seventeenth cause of action), seek
specified remedies based on the foregoing claims.
2. JPMorgan’s Demurrer
JPMorgan filed a demurrer to the second amended complaint, contending it was a
rehash of Scott’s earlier pleading, JPMorgan could not be liable for any of Magnus’ loan
origination acts because it did not assume this liability under the P&A Agreement, and
the wrongful foreclosure claim failed because JPMorgan complied with its statutory
notice requirements and Scott failed to tender amounts owing under the loan.
JPMorgan did not file a new request for judicial notice in connection with its
demurrer, but the parties and the trial court proceeded as if the earlier request for judicial
notice could be considered in ruling on the demurrer. Although JPMorgan’s demurrer
represented incorrectly that a “request for judicial notice” was being submitted
concurrently, it also provided that its “motion” would be based on the “request for
judicial notice” as well as “all documents, records, and pleadings on file.”
Scott filed an opposition to the demurrer, urging that the court must accept as true
his allegation that “defendants’ notice of default was defective and in violation of Civil
Code [section] 2924.” He also argued that it would be inequitable to require a tender, in
light of his allegations that JPMorgan’s fraudulent acts had increased Scott’s costs and
risk and inflated the value of his home; alternatively, he proposed, the court should allow
him to make the tender after entry of judgment. As to the materials JPMorgan had
sought to be judicially noticed, Scott did not object to the absence of a new or separate
request for judicial notice, but relied instead on his boilerplate objections to the earlier
one and argued that the materials could not be considered in ruling on the demurrer.
6
In addition, Scott sought leave to amend in case the demurrer was sustained, based
on the following “offer of proof:” “Plaintiff submits to the court that the discovery
responses adduced in this case clearly demonstrate the active involvement of JPMorgan
Chase’s representatives with this transaction after the acquisition by JPMorgan Chase of
Washington Mutual (again, however, plaintiff reasserts his objection to defendant’s use
and previous Request for Judicial Notice).”
3. Court’s Ruling
After a hearing on May 5, 2011, the trial court affirmed its tentative ruling by a
written order entered on May 20, 2011, sustaining the demurrer to the second amended
complaint without leave to amend.
The court noted that JPMorgan’s “Request for Judicial Notice of RJN Exhibits 1
through 7 was previously granted by Order filed herein in November 4, 2010.” It then
explained its decision on the demurrer as follows: “JPMorgan Chase acquired the assets
of Washington Mutual from the Federal Deposit Insurance Corporation (FDIC) by
purchase agreement dated September 25, 2008 (‘Agreement’) but did not assume any
borrower liabilities. (RJN Ex. 4, 5). [Citations.] Plaintiff’s SAC, at [¶] 49, alleges
JP Morgan Chase acquired the assets of Washington Mutual. [¶] On November 7, 2007,
First Magnus assigned its interest under the Deed of Trust to Washington Mutual. (RJN,
Ex. 3). Proof or acknowledgement of an instrument by an out of state notary is
authorized by Civil Code § 1182. The certificate of acknowledgement is prima facie
evidence of the facts recited in the certificate, and the genuineness of the signature of
each person by whom the writing purports to have been signed. Evidence Code
[sections] 1451, 1452; 1453.” The court also noted, relying on the documents judicially
noticed, that Scott defaulted on his loan payments, a notice of default was recorded, as
was a notice of trustee’s sale. And, in another proceeding consolidated with this one,
“the Complaint indicates JP Morgan Chase purchased the subject property at trustee’s
sale on May 7, 2009.”
7
In addition, the court observed: “Plaintiff has failed to allege tender, or make an
offer to tender a sum sufficient to cure the default, and therefore has not met the
requirements to obtain relief for wrongful foreclosure. [Citations.]”
This appeal followed.
II. DISCUSSION
In our de novo review of an order sustaining a demurrer, we assume the truth of all
facts properly pleaded in the complaint or reasonably inferred from the pleading, but not
mere contentions, deductions, or conclusions of law. (Buller v. Sutter Health (2008) 160
Cal. App. 4th 981, 985-986 (Buller).) We then determine if those facts are sufficient, as a
matter of law, to state a cause of action under any legal theory. (Aguilera v. Heiman
(2009) 174 Cal. App. 4th 590, 595.)
In making this determination, we also consider facts of which the trial court
properly took judicial notice. (E.g., Avila v. Citrus Community College Dist. (2006) 38
Cal. 4th 148, 165, fn. 12.) Indeed, a demurrer may be sustained where judicially
noticeable facts render the pleading defective (Evans v. City of Berkeley (2006) 38
Cal. 4th 1, 6), and allegations in the pleading may be disregarded if they are contrary to
facts judicially noticed. (Hoffman v. Smithwoods RV Park, LLC (2009) 179 Cal. App. 4th
390, 400; see Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal. App. 4th 256, 264-266
(Fontenot) [in sustaining demurrer, court properly took judicial notice of recorded
documents that clarified and to some extent contradicted plaintiff’s allegations].)
In order to prevail on appeal from an order sustaining a demurrer, the appellant
must affirmatively demonstrate error. Specifically, the appellant must show that the facts
pleaded are sufficient to establish every element of a cause of action and overcome all
legal grounds on which the trial court sustained the demurrer. (Cantu v. Resolution Trust
Corp. (1992) 4 Cal. App. 4th 857, 879-880.) We will affirm the ruling if there is any
ground on which the demurrer could have been properly sustained. (Debro v. Los
Angeles Raiders (2001) 92 Cal. App. 4th 940, 946 (Debro).)
We begin our analysis with whether the trial court erred in taking judicial notice.
8
A. Judicial Notice
In ruling on the demurrer to the second amended complaint, the court took judicial
notice of several documents (and facts therein), including the federal government’s
appointment of FDIC as WaMu’s receiver and the P&A Agreement, which provides that
the FDIC transferred to JPMorgan assets of WaMu, but not certain liabilities, as of
September 25, 2008, after Scott had obtained his loan and before JPMorgan foreclosed.
Although JPMorgan had not submitted a formal request for judicial notice in connection
with the demurrer, the court and parties acknowledged JPMorgan’s prior request, Scott
had the opportunity to object, and, in any event, the court may take judicial notice on its
own volition. (See Evid. Code, § 455, subd. (a); Joslin v. H.A.S. Ins. Brokerage (1986)
184 Cal. App. 3d 369, 374 (Joslin) [reviewing propriety of judicial notice in ruling on
demurrer, even though record did not contain request for judicial notice].)
Scott contends that the court should not have taken judicial notice of the P&A
Agreement or the facts therein. At least two subdivisions of Evidence Code section 452,
however, provided authority for the judicial notice taken in this case. (Except where
otherwise indicated, all statutory references hereafter are to the Evidence Code.)
First, section 452, subdivision (c) provides that judicial notice may be taken of
“[o]fficial acts of the legislative, executive, and judicial departments of the United States
and of any state of the United States.” This subdivision “enables courts in California to
take notice of a wide variety of official acts. . . . [and] an expansive reading must be
provided to certain of its phrases[;] included in ‘executive’ acts are those performed by
administrative agencies.” (Simons, California Evidence Manual (2013) Judicial Notice
§ 7:11, p. 558.) Scott does not dispute that official acts of the FDIC may be subject to
judicial notice under section 452, subdivision (c). As JPMorgan argues, the FDIC’s
official acts of seizing WaMu’s assets and publishing the P&A Agreement are judicially
noticeable. Moreover, as explained post, the FDIC’s official act of transferring certain
WaMu assets (but not certain liabilities) to JPMorgan as of September 25, 2008 – as
9
evinced by the P&A Agreement – is an official act subject to judicial notice under
section 452, subdivision (c) under the circumstances of this case.1
Second, section 452, subdivision (h) provides that judicial notice may be taken of
“[f]acts and propositions that are not reasonably subject to dispute and are capable of
immediate and accurate determination by resort to sources of reasonably indisputable
accuracy.” In this case, the fact of the P&A Agreement and the fact of the transfer to
JPMorgan of WaMu assets, but not liabilities for borrower’s claims, are not reasonably
subject to dispute and are capable of ready determination, particularly since Scott did not
question with specificity the authenticity, completeness, or legal effect of the P&A
Agreement posted on the official FDIC Web site. Numerous federal courts have taken
judicial notice of the P&A Agreement on a similar basis.2
1
In its respondent’s brief, JPMorgan criticizes Scott for not addressing
subdivision (c) of section 452. This is ironic, since JPMorgan did not seek judicial notice
in the trial court based on subdivision (c) of section 452, but on subdivisions (d), (g), and
(h), along with section 451, subdivision (f). Nonetheless, JPMorgan’s failure to rely on
subdivision (c) in the trial court does not compel us to find the court’s grant of judicial
notice erroneous, for three reasons. First, Scott’s appellate briefs do not make this
argument. Second, the trial court’s ruling will be affirmed if there is any lawful ground
to support it. (Hendy v. Losse (1991) 54 Cal. 3d 723, 742; see also StorMedia Inc. v.
Superior Court (1999) 20 Cal. 4th 449, 457, fn. 9 [in reviewing demurrer ruling, appellate
court may consider facts judicially noticed by the trial court or those which the trial court
properly could have noticed] (StorMedia); Evid. Code, § 459.) Third, as stated in the
text, we agree with JPMorgan that judicial notice was also proper under section 452,
subdivision (h), a ground JPMorgan did cite. We need not and do not decide whether
judicial notice would have also been proper under section 451, subdivision (f)
[universally known facts] or section 452, subdivision (g) [common knowledge within the
jurisdiction].
2
Rule 201(b) of the Federal Rules of Evidence, which permits judicial notice of a
fact that is “not subject to reasonable dispute because it . . . can be accurately and readily
determined from sources whose accuracy cannot reasonably be questioned,” is akin to
California Evidence Code section 452, subdivision (h), which permits judicial notice of
“[f]acts and propositions that are not reasonably subject to dispute and are capable of
immediate and accurate determination by resort to sources of reasonably indisputable
accuracy.” Under the federal rule, courts have taken judicial notice of the P&A
Agreement. (Argueta v. JPMorgan Chase (E.D. Cal. 2011) 787 F. Supp. 2d 1099, 1103
[judicial notice taken of P&A Agreement]; Rosenfeld v. JPMorgan Chase Bank, N.A.
10
Scott argues that judicial notice was improper because, while judicial notice may
be taken of public records, it may not be taken of the facts asserted within them. (E.g.,
Herrera v. Deutsche Bank National Trust Co. (2011) 196 Cal. App. 4th 1366, 1375
[“While courts take judicial notice of public records, they do not take notice of the truth
of matters stated therein”] (Herrera); Joslin, supra, 184 Cal.App.3d at p. 374 [“Taking
judicial notice of a document is not the same as accepting the truth of its contents or
accepting a particular interpretation of its meaning”]; see Mangini v. R.J. Reynolds
Tobacco Co. (1994) 7 Cal. 4th 1057, 1063-1065 [court could not take judicial notice of
the truth of conclusions within a report from the United States Surgeon General regarding
the health effects of smoking or the truth of matters reported in a newspaper article]
(Mangini), overruled on other grounds in In re Tobacco Cases II (2007) 41 Cal. 4th 1257,
1262, 1276.)
The distinction that Scott draws, however, is immaterial to this case. Where, as
here, judicial notice is requested of a legally operative document – like a contract – the
court may take notice not only of the fact of the document and its recording or
publication, but also facts that clearly derive from its legal effect. (Fontenot, supra, 198
Cal.App.4th at p. 265.) Moreover, whether the fact derives from the legal effect of a
(N.D. Cal. 2010) 732 F. Supp. 2d 952, 959 [judicial notice taken of the P&A Agreement,
as a matter of public record]; McCann v. Quality Loan Service Corp. (W.D. Wash. 2010)
729 F. Supp. 2d 1238, 1241 [“the Court takes judicial notice of the P&A Agreement
because it is a public record and not the subject of reasonable dispute”]; Allen v. United
Fin. Mortgage Corp. (N.D. Cal. 2009) 660 F. Supp. 2d 1089, 1093 [judicial notice taken
of the P&A Agreement, even though several pages were missing from the submission by
defendant, because the entire P&A Agreement is available online from the FDIC’s Web
site]; Coward v. JP Morgan Chase Bank, 2013 U.S. Dist. LEXIS 22412, (E.D. Cal.
Feb. 19, 2013) at *7-9 [judicial notice taken of P&A Agreement]; In re Sharp, Case
No. 09-13980, A. P. No. 10-1032, 2011 Bankr. LEXIS 2841, at *3, fn. 1 (N.D. Cal. Bk.
Jul. 19, 2011) [same]; Jarvis v. JP Morgan Chase Bank, N.A., 2010 WL 2927276, at *1,
2010 U.S. Dist. LEXIS 84958, at *3 (C.D. Cal. July 23, 2010) [judicial notice taken of
OTS Order and P&A Agreement, which were available on government Web sites];
Molina v. Wash. Mut. Bank, No. 09-CV-00894-IEG (AJB), 2010 U.S. Dist. LEXIS 8056,
at *8 (S.D. Cal. Jan. 29, 2010) [judicial notice taken of P&A Agreement].)
11
document or from a statement within the document, the fact may be judicially noticed
where, as here, the fact is not reasonably subject to dispute.
Judicial notice of the legal effect of legally operative documents was discussed at
length by our Division One colleagues in Fontenot. There, the court explained:
“[C]ourts have taken judicial notice not only of the existence and recordation of recorded
documents but also a variety of matters that can be deduced from the documents. In
Poseidon [Development, Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal. App. 4th
1106, 1117], for example, the court affirmed the trial court’s taking judicial notice, in
sustaining a demurrer, of the parties, dates, and legal consequences of a series of recorded
documents relating to a real estate transaction. [Citation.] Although the court recognized
that it would have been improper to take judicial notice of the truth of statements of fact
recited within the documents, the trial court was permitted to take judicial notice of the
legal effect of the documents’ language when that effect was clear. [Citation.]”
(Fontenot, supra, 198 Cal.App.4th at p. 265.) After giving additional examples, the court
in Fontenot continued: “Strictly speaking, a court takes judicial notice of facts, not
documents. (Evid. Code, § 452, subds. (g), (h).) When a court is asked to take judicial
notice of a document, the propriety of the court’s action depends upon the nature of the
facts of which the court takes notice from the document. . . . Taken together, the
decisions discussed above establish that a court may take judicial notice of the fact of a
document’s recordation, the date the document was recorded and executed, the parties to
the transaction reflected in a recorded document, and the document’s legally operative
language, assuming there is no genuine dispute regarding the document’s authenticity.
From this, the court may deduce and rely upon the legal effect of the recorded document,
when that effect is clear from its face.” (Ibid.)
Accordingly, Fontenot ruled, the trial court did not err at the demurrer stage in
taking judicial notice of the identity of the beneficiary of a deed of trust, based on the
designation of the beneficiary in the deed of trust, “since its status was not a matter of
fact existing apart from the document itself.” (Fontenot, supra, 198 Cal.App.4th at
p. 266.) The deed of trust, as a legally operative document, designated the beneficiary,
12
and therefore the identity of the beneficiary was not reasonably subject to dispute. (Ibid.)
Other matters noticed by the trial court could be inferred from the text or legal effect of
the documents as well. (Ibid.)
Here, in line with Fontenot, the trial court in this case did not abuse its discretion
in taking judicial notice of the OTS Order, the P&A Agreement, and the legal effect of
those documents in transferring to JPMorgan the stated assets of WaMu, but none of its
liabilities for borrowers’ claims, as of September 25, 2008. The P&A Agreement
expressly provided that this was the intent of the parties to the agreement, and that was its
legal effect. These facts therefore derive from the legal effect of the documents
themselves, rather than any disputed hearsay statement of fact within them. Moreover,
there is no allegation in the second amended complaint that the P&A Agreement is not
authentic, and its authenticity is buttressed by its posting on the official FDIC Web site.3
None of the cases on which Scott relies is inconsistent with our conclusion that
judicial notice can be taken of the legal effect of the P&A Agreement. In Herrera, for
example, the court merely held that judicial notice could not be taken of the fact that a
foreclosing bank was the beneficiary under a deed of trust, where the judicial notice was
to be based on disputed hearsay statements within a substitution of trustee form and an
assignment of the deed of trust: it was improper to take judicial notice based on the
substitution of trustee form, because the recital in the document that the bank “is the
3
Scott’s sole objection in the trial court was the boilerplate objection that “this
document” was not the type of document of which judicial notice may be taken. Scott
belatedly argues in this appeal that JPMorgan did not sufficiently authenticate the
documents attached to its request for judicial notice, because we should not accept a
financial entity’s representation that documents are in fact true copies of the originals.
However, the request for judicial notice averred, under penalty of perjury, that the copies
were “true and correct,” and Scott provides no authority that an assertion under penalty of
perjury should be disregarded merely because it is made by someone on behalf of a bank.
While the request for judicial notice does not explicitly state the factual foundation for
this representation, it does refer to a link on the FDIC Web site, by which the authenticity
of the document can be verified. In the absence of any indication in the record that the
document has been falsified, or any specific objection in the trial court, the averment of
authentication and the independent means of verification were sufficient.
13
present beneficiary” was hearsay and disputed; it was improper to take judicial notice
based on the assignment of the deed of trust, because, even though the document recited
that the bank was assigned all beneficial interest under the deed of trust by a predecessor
bank, its recital that the predecessor bank was successor to the original beneficiary was
hearsay, so the overall truthfulness of the assignment of the deed of trust remained
subject to dispute as well. (Herrera, supra, 196 Cal.App.4th at p. 1375.)
Thus, Herrera did not hold that judicial notice cannot be taken of the legal effect
of a legally operative document (like the assignment of the deed of trust, or, here, the
P&A Agreement); it simply held that it could not be done in that case, because the
vitality of the assignment was reasonably subject to dispute without independent proof
that the party assigning the interest had the authority to do so. (Herrera, supra, 196
Cal.App.4th at p. 1375; see Fontenot, supra, 198 Cal.App.4th at pp. 266-267 & fn. 7
[distinguishing Herrera on this ground].) Here, by contrast, Scott fails to show any
reasonable dispute that WaMu held the beneficial interest in Scott’s deed of trust when
the FDIC transferred WaMu’s relevant assets to JPMorgan: to the contrary, Scott alleges
that after Magnus became insolvent WaMu notified him that WaMu “retained custody”
of his loan, and he does not allege any well-pleaded facts from which the invalidity of the
assignment might reasonably be inferred.4 Herrera poses no barrier to taking judicial
notice of facts deriving from the legal effect of the P&A Agreement.
Similarly distinguishable is Fremont Indemnity Co. v. Fremont General Corp.
(2007) 148 Cal. App. 4th 97, in which the court held that judicial notice could not be taken
4
In his opening brief, Scott says the second amended complaint alleges “fatal holes
in the chain of title from [Magnus’s] transfer of the Deed of Trust to WaMu, due to what
amounts to be an unprovable (false) notarization, and substitution of the original first
page of the Deed of Trust.” His pleading, however, merely alleges that Scott “contends”
the assignment of the deed of trust from Magnus to WaMu was invalid because the
notary had no record of notarizing it, and the first page of the deed of trust was different.
An allegation of what Scott “contends” is not an allegation of fact, and there is no factual
allegation explaining any difference in the substituted page that would nullify the
assignment. Moreover, Scott provides no legal authority for the proposition that either
the absence of a notarization record or the substitution of a page of the deed of trust,
under the facts alleged, would render the assignment void.
14
of the meaning or enforceability of a letter, where the parties disputed whether the letter
memorialized or constituted a contract, and the meaning and enforceability of the letter
was reasonably subject to dispute. (Id. at pp. 114-116.) Because judicial notice could not
be taken of the meaning of the letter based on the document alone, the court could not
take judicial notice of the proper interpretation of the letter submitted in support of a
demurrer. (Id. at p. 115.)
In the matter before us, however, neither the enforceability of the P&A Agreement
nor its meaning is reasonably subject to dispute. The second amended complaint does
not allege that the P&A Agreement is unenforceable, or that it did not transfer WaMu’s
assets (but not liabilities) to JPMorgan as of September 25, 2008. Nor is there any
specific factual allegation from which we might infer that the P&A Agreement is
unenforceable or susceptible of a different meaning.5 Moreover, the P&A Agreement has
already been the subject of judicial interpretation by multiple courts, which have reached
the conclusion that the P&A Agreement is enforceable, precludes JPMorgan’s liability
for borrowers’ claims, and justifies dismissal of borrowers’ claims at the pleading stage.
(E.g., Hanaway v. JPMorgan Chase Bank, N.A. (C.D. Cal. Feb. 15, 2011) 2011 U.S. Dist.
LEXIS 21374 at *8-9 [dismissing claims against JPMorgan related to borrower’s loan
transaction with WaMu, and citing numerous other federal decisions reaching the same
conclusion] (Hanaway); see Yeomalakis v. FDIC (1st Cir. 2009) 562 F.3d 56, 60
[because JPMorgan’s P&A Agreement retained for the FDIC any liability associated with
borrower claims for relief, the FDIC rather than JPMorgan is the appropriate party in
interest] (Yeomalakis); see also § 451, subd. (a) [trial court shall take judicial notice of
federal decisional law].) Under these circumstances, the court did not abuse its discretion
in taking judicial notice of the P&A Agreement and its transfer of WaMu’s assets to
JPMorgan without transferring WaMu’s relevant liabilities.
5
Scott alleged in vague conclusory terms that JPMorgan had not “completed” the FDIC’s transfer of
WaMu’s assets to JPMorgan and, on that basis, JPMorgan had no beneficial interest in his property. He offered no
factual basis for that conclusion, and it is inconsistent with his other allegations. At any rate, his contention does not
dispute the enforceability or interpretation of the P&A Agreement. To the extent it is germane to his other
arguments, we address it post.
15
Also inapposite is Joslin, supra, 184 Cal. App. 3d 369. There, the question was
whether deposition testimony could be considered in ruling on a demurrer. (Id. at
p. 373.) The court, noting that “[t]aking judicial notice of a document is not the same as
accepting the truth of its contents or accepting a particular interpretation of its meaning,”
ruled that “the trial judge could accept the truth of the facts stated in the . . . deposition
only to the extent they were not or could not be disputed.” (Id. at pp. 374-375.) Thus,
facts disclosed by the deposition and not disputed were properly considered in ruling on
the demurrer, and facts disclosed by the deposition that were disputed could not be. (Id.
at pp. 375-376.)
Joslin is distinguishable, since it dealt with facts asserted by parties in a
deposition, not facts deriving from the independent legal significance of a contract. In
any event, just as facts that were not disputed in Joslin could be considered in ruling on a
demurrer, the facts that are not disputed or not reasonably subject to dispute in this case –
the existence, enforceability, and legal effect of the P&A Agreement – were properly
considered in ruling on JPMorgan’s demurrer.6
6
In Mangini, supra, 7 Cal. 4th 1057, it was ruled that the court could not judicially
notice the truth of conclusions within a report from the United States Surgeon General
regarding the health effects of smoking or the truth of matters reported in a newspaper
article. (Id. at pp. 1063-1065.) Mangini did not, however, address legally operative
documents, such as a recorded assignment or contract. In StorMedia, supra, 20 Cal. 4th
449, the court cited Joslin for the proposition that “[w]hen judicial notice is taken of a
document, however, the truthfulness and proper interpretation of the document are
disputable.” (StorMedia, at p. 457, fn. 9.) The court granted an implicit request for
judicial notice that was unopposed, without applying the principle. (Ibid.) In Searles
Valley Minerals Operations, Inc. v. State Bd. of Equalization (2008) 160 Cal. App. 4th
514, at page 519, the court ruled that judicial notice could not be taken of “materials
contained on Web site pages” of the American Coal Foundation and the United States
Department of Energy pursuant to section 452, subdivision (h), where no legal authority
was cited for taking judicial notice from the Web sites and, “although it might be
appropriate to take judicial notice of the existence of the Web sites, the same is not true
of their factual content.” (Italics omitted.) As we explain in the text, the rule against
judicial notice of the content of a document is inapplicable here, where we are concerned
with judicial notice of the undisputed legal effect of a legally operative document.
16
Nor is the federal district court’s decision in Mena v. JPMorgan Chase Bank (N.D.
Cal. Sept. 7, 2012) 2012 U.S. Dist. LEXIS 128585 (Mena), on which Scott also relies,
contrary to our conclusion. In Mena, the plaintiffs had two loans from WaMu, secured
by deeds of trust naming WaMu as the original lender/beneficiary. Plaintiffs alleged that
WaMu then transferred its interests to a third party, based on certain SEC filings.
JPMorgan, however, argued that WaMu’s interests had instead been transferred to
JPMorgan by the FDIC pursuant to the P&A Agreement. (Id. at *3-4 & fn. 10.) After
foreclosure proceedings were commenced based on JPMorgan’s purported interest under
the deed of trust (and transfer of that interest to third parties), the plaintiffs sued, asserting
claims including wrongful foreclosure. (Id. at *4-6.) JPMorgan moved for dismissal,
seeking judicial notice of documents including the P&A Agreement. (Id. at *9.) In
deciding whether the plaintiffs had stated a claim based on JPMorgan’s unlawful
initiation of the nonjudicial foreclosure process, the court concluded that it could take
judicial notice of the P&A Agreement, but it could not take judicial notice that the effect
of the agreement was to transfer the beneficial interest under the deed of trust to
JPMorgan, due to the specific allegations in the complaint (supported by SEC filings) that
WaMu’s interest had been transferred to a third party before the FDIC transferred
WaMu’s assets to JPMorgan. (Id. at *24.)7
7
The court in Mena stated: “And although the court notices the September 2008
Purchase and Assumption Agreement between Chase and the FDIC Receiver of WaMu’s
assets, [footnote] the court may not notice, as undisputed fact, that the effect of this
agreement was to transfer to Chase the beneficial interest in question, that interest already
having been ‘spun off’ according to the Complaint. It is not clear from the Complaint or
the noticed documents whether Chase properly owned the beneficial interest that it
purported to transfer in the first and second Assignment of DOT. [Footnote.] The
allegations of false signatures to which Defendants have not responded further strengthen
Plaintiffs’ allegation of wrongful conduct.” (Mena, supra, 2012 U.S. Dist. LEXIS
128585, at *24.) Elsewhere the court explained: “The court agrees with the premise . . .
that judicial action may be used to challenge a nonjudicial foreclosure process where the
specific facts alleged in the complaint, taken as true at the pleading stage, demonstrate a
failure to effect a valid transfer of beneficial interest in a manner than renders void the
initiation of nonjudicial foreclosure.” (Id. at *11, italics added.)
17
Mena is readily distinguishable from the matter at hand. In Mena, the plaintiffs
had alleged specific facts to support the inference that JPMorgan did not obtain WaMu’s
interest in the deed of trust under the P&A Agreement. Here, by contrast, Scott alleges
no specific facts, resorting to a mere conclusory assertion that JPMorgan had no interest
in the deed of trust securing the property. It was not an abuse of discretion for the trial
court in this case to take judicial notice of the obvious legal effect of the P&A Agreement
– to transfer to JPMorgan the assets of WaMu that included its interests in deeds of trust.
In sum, whether the fact to be judicially noticed is the document or record itself
(e.g. the existence of the P&A Agreement), the legal effect of the document (its transfer
of assets but not liabilities to JPMorgan), a fact asserted within the document (the
transfer), or an act by a government agency (the transfer by the FDIC), the essential
question is whether the fact to be judicially noticed is not reasonably subject to dispute.
Here, the court did not abuse its discretion in concluding that the fact of the FDIC’s
transfer to JPMorgan of “all of” WaMu’s assets, but not its liabilities for borrower’s
claims, as of September 25, 2008, was not reasonably subject to dispute in light of the
face of the P&A Agreement, its posting on the official FDIC Web site, the allegations (or
lack thereof) in Scott’s second amended complaint, the arguments of the parties, and the
numerous federal judicial decisions accepting that fact in the context of motions to
dismiss.8
Finally, our ruling today is consistent with the very recent decision of our
Division Two colleagues in Jolley v. Chase Home Finance, LLC (2013) 213 Cal. App. 4th
872 (Jolley). In Jolley, defendant Chase Home Finance, LLC (Chase) had sought
summary judgment on claims brought by the plaintiff borrower. In support of its motion,
8
Indeed, section 452, subdivision (c) permits judicial notice of official government
acts. This is not a situation where the statutory provision permits judicial notice only of a
record or document, and the question becomes whether statements of fact within the
document are worthy of judicial notice as well. The question is simply whether the fact
of the government’s action (transferring WaMu’s assets but not its liabilities to
JPMorgan) has been sufficiently evinced by the document that was submitted to establish
that fact (the P&A Agreement). It has been in this case, since the authenticity and effect
of the P&A Agreement cannot reasonably be disputed, for reasons discussed ante.
18
Chase requested judicial notice of its acquisition of some of WaMu’s assets based on the
P&A Agreement, attaching a purported copy of the P&A Agreement to its attorney’s
declaration and referencing the FDIC Web site on which the agreement is posted. (Id. at
pp. 882-883.) Unlike Scott in this case, the plaintiff in Jolley objected to the judicial
notice request on the specific ground that the document attached to the declaration was
not the complete document governing Chase’s purchase of WaMu assets, and submitted a
declaration explaining that this belief was based on personal knowledge of a longer
version, which the FDIC refused to produce. (Id. at p. 883.) The appellate court in Jolley
concluded it was error for the trial court to take judicial notice of the P&A Agreement
and Chase’s acts of acquiring WaMu’s assets but not its liabilities: “the content and legal
effect of the P&A Agreement could not properly be determined on judicial notice under
California law. . . . [a]nd certainly not here.” (Id. at p. 887.)
Jolley is obviously distinguishable on its facts from the matter at hand. In Jolley,
the P&A Agreement and its legal effect were reasonably subject to dispute because the
opposing party insisted that the copy attached to the attorney’s declaration was not the
actual P&A Agreement, based on personal knowledge as set forth in a declaration under
penalty of perjury. In our case, by contrast, Scott did not dispute in the trial court that the
copy attached to counsel’s declaration and on the FDIC Web site is the actual P&A
Agreement. Since Scott on appeal fails to show that the P&A Agreement (or even its
legal effect) was reasonably subject to dispute on this or any other basis in the trial court,
he fails to show that the court erred in taking judicial notice.
Indeed, in our view, the overarching theme of both Jolley and this case are in
accord: judicial notice can be taken of matters not reasonably subject to dispute, but
cannot be taken of matters shown to be reasonably subject to dispute. As Jolley notes,
the mere fact that a statement appears on a web page does not mean that it is not
reasonably subject to dispute. (Jolley, supra, 213 Cal.App.4th at p. 889; Huitt v.
Southern California Gas. Co. (2010) 188 Cal. App. 4th 1586, 1605, fn. 10.) And if the
information on the Web site is reasonably disputed by the parties, it is not subject to
judicial notice. (Jolley, at p. 889; L.B. Research & Education Foundation v. UCLA
19
Foundation (2005) 130 Cal. App. 4th 171, 180, fn. 2 [where the parties submitted dueling
requests for judicial notice “comprised of printouts from various Web sites maintained by
UCLA and the University of California,” the information is not subject to judicial notice
because it is subject to interpretation].) But based on the record in the case before us, the
fact of the FDIC’s act of transferring assets (but not liabilities) to JPMorgan, as evinced
by the P&A Agreement attached to the request for judicial notice and published to the
public on the official FDIC Web site, was not shown by Scott to be subject to reasonable
dispute in the trial court.9
The trial court in this case did not err in taking judicial notice of the fact that the
FDIC transferred assets, but not liabilities, of WaMu as of September 25, 2008, to
JPMorgan, as set forth in the provisions of the P&A Agreement.
B. Legal Significance of the Facts Judicially Noticed
Having concluded that the court properly took judicial notice of the facts that
(1) JPMorgan received “all right, title, and interest of the Receiver in and to all of the
assets (real, personal and mixed, wherever located and however acquired) . . . of
9
Jolley also acknowledged the broad scope of section 452, subdivision (c)
pertaining to judicial notice of official government acts, but did not “understand a
contract with a private bank to come within that subdivision.” (Jolley, supra, at p. 887.)
We need not and do not decide whether every contract between a government agency and
a private entity will be subject to judicial notice. On the record before us, the P&A
Agreement was not just any contract: it was the official disposition of the assets and
liabilities of a savings bank unable to pay its obligations to creditors and depositors,
pursuant to a federal government order of receivership for the purpose of liquidation
under a federal statute, published on the FDIC Web site to give vital and reliable notice to
the public. Furthermore, we focus not on the contractual form of the document, but on
the undisputed nature of the official act of transfer that it evinces, to bring section 452,
subdivision (c) into play. In any event, we do not rely solely on subdivision (c) to uphold
the judicial notice in this case. On another note, Jolley stated: “In sum, we hold that
judicial notice was not properly taken of the content of the P&A Agreement even if there
was no dispute about its authenticity. A fortiori here, where the very authenticity of the
Agreement was in dispute.” (Jolley, at p. 889, italics added.) The seemingly broad brush
of this comment is limited by its factual context, however; certainly Jolley did not decide
the propriety of judicial notice under circumstances that were not before it, but are now
before us.
20
[WaMu]” (except for certain assets not germane here, as set forth ante) in September
2008 and (2) JPMorgan did not assume liability for borrower claims related to loans, or
commitments to lend, made or held by WaMu, as of September 25, 2008, we now
consider how those facts affect whether Scott has stated a cause of action.
Scott purported to assert 16 causes of action in his second amended complaint,
each of which we discussed ante. Many of these purported “causes of action” are really
just alternative legal theories, or requests for a particular remedy (injunctive relief) or
imposition of joint liability (aiding and abetting, conspiracy, joint venture), rather than a
distinct cause of action. Giving Scott’s pleading the broadest construction to which it is
entitled at the demurrer stage, we conclude that Scott sought relief against JPMorgan on
the following bases.
1. Wrongdoing by Others in Loan Negotiation and Origination
The second amended complaint seeks recovery against JPMorgan in part for the
fraud and other wrongdoing perpetrated by Magnus and others in connection with Scott’s
entry into the loan agreement, based on the fact that JPMorgan is a successor to WaMu’s
interest in the deed of trust. We agree with JPMorgan and the trial court that this liability
is foreclosed as a matter of law by the legal effect of the P&A Agreement, which
provided that JPMorgan did not assume liability for borrower claims related to loans or
loan commitments made by WaMu, or made by a third party (like Magnus) and
purchased or held by WaMu.
There is no dispute that the FDIC, as conservator or receiver, may sell the assets of
a failed bank while retaining its related liabilities. (See, e.g., Kennedy v. Mainland Sav.
Ass’n (5th Cir. 1994) 41 F.3d 986, 990-991; Payne v. Security Sav. & Loan Assn., F.A.
(7th Cir. 1991) 924 F.2d 109, 111 [“This design facilitates the sale of a failed institution’s
assets (and thus helps to minimize the government’s financial exposure) by allowing the
[FDIC] to absorb liabilities itself and guarantee potential purchasers that the assets they
buy are not encumbered by additional financial obligations”].) Furthermore, in
examining the same provision in the P&A Agreement that is at issue in this case, federal
courts have concluded that JPMorgan has no liability as a matter of law. (E.g., Ansanelli
21
v. JPMorgan Chase Bank, N.A. (N.D. Cal. Mar. 28, 2011) 2011 U.S. Dist. LEXIS 32350,
at *6 [“Chase is not responsible for any liability of WaMu related to loans made by
WaMu prior to September 25, 2008, the date of assumption . . . .”]; Javaheri v.
JPMorgan Chase Bank, N.A. (C.D. Cal. Jan. 11, 2011) 2011 U.S. Dist. LEXIS 4249, at
*8-9 [“[B]ecause JPMorgan expressly disclaimed assumption of liability arising from
borrower claims against WaMu, those actions which predate the P&A Agreement cannot
be brought against JPMorgan”].) Rather, the FDIC “was and remains the appropriate
party in interest.” (Yeomalakis, supra, 562 F.3d at p. 60.)
2. JPMorgan’s Own Acts Prior to Foreclosure
Scott also suggests that JPMorgan could be liable for its own acts in connection
with his entry into the loan agreement. The second amended complaint, however, does
not allege any particular act by JPMorgan in this regard. Scott points us instead to his
boilerplate allegations that all “defendants” are responsible for the acts of all the other
“defendants,” as well as his conspiracy, aiding and abetting, and joint venture contentions
as to the “defendants.” The pleading’s conclusory statements as to all “defendants” are
insufficient to state a cause of action against JPMorgan, in light of the allegations and
judicially noticed documents indicating that the loan was negotiated on behalf of
Magnus, without any mention of JPMorgan. In other words, the only inference from the
allegations of Scott’s pleading and the facts properly subject to judicial notice is that
JPMorgan was not involved in the negotiation and origination of the loan.
Similarly, Scott contends JPMorgan could be liable for its own acts after the loan
origination, but prior to foreclosure. In paragraph 49 of his second amended complaint,
Scott alleged: “Plaintiff had specific discussions with employees of JPMorgan Chase
prior to the time JPMorgan Chase acquired the certain assets and liabilities of
Washington Mutual from the FDIC in which the representatives and employees of
JPMorgan Chase, both prior to its acquisition of Washington Mutual from the FDIC and
subsequent to its acquisition of Washington Mutual, made representations that if plaintiff
spent his own funds to bring the house to the point of obtaining a final building
inspection, JPMorgan Chase would provide reimbursement of the balance of the
22
construction funds and permanent financing. As a result of those representations,
plaintiff did expend in excess of $400,000.00 of his personal funds, including, but not
limited to, borrowing from his pension plan to comply with the conditions set forth by
JPMorgan Chase.”
These allegations, however, are not sufficiently specific to support a claim for
fraud: they do not allege with particularity who made the statements, when they were
made, what was actually stated, or why they were false. (See Lazar v. Superior Court
(1996) 12 Cal. 4th 631, 645; Tarmann v. State Farm Mut. Auto Ins. Co. (1991) 2
Cal. App. 4th 153, 157 [“The requirement of specificity in a fraud action against a
corporation requires the plaintiff to allege the names of the persons who made the
allegedly fraudulent representations, their authority to speak, to whom they spoke, what
they said or wrote, and when it was said or written”].) Nor has Scott, in the trial court or
in his appellate briefs, articulated any other cause of action that could be based on
JPMorgan’s purported statements. Scott has failed to show that his allegations allege a
cognizable cause of action.
3. Wrongful Foreclosure: JPMorgan’s Lack of Standing to Foreclose
Turning to Scott’s wrongful foreclosure claim, Scott contends that JPMorgan
lacked standing to foreclose on his property, because it had no beneficial interest under
the deed of trust on his property. Although this assertion about standing reigns
paramount in Scott’s appellate briefs, the allegation does not actually appear in his
purported cause of action for wrongful foreclosure; instead, it is found in paragraph 40,
which is merely incorporated by reference into the cause of action and reads: “Plaintiff
contends that defendant JP Morgan Chase has not completed the transfer of the Washing
[sic] Mutual assets from the FDIC to JP Morgan Chase. Plaintiff further contends that as
a result, defendant JP Morgan Chase has no rights in plaintiff’s real property and that any
foreclosure actions proceeded wrongfully.”
Scott’s lack-of-standing theory is precluded by the allegations of the second
amended complaint and the facts judicially noticed by the court: the original beneficiary
under the deed of trust was Magnus; Magnus transferred its beneficiary interest to
23
WaMu; and, as demonstrated by the P&A Agreement, WaMu’s assets were transferred
by the FDIC to JPMorgan as of September 25, 2008. Therefore, JPMorgan had WaMu’s
beneficial interest in the deed of trust on Scott’s property, and the power to foreclose with
respect to Scott’s loan on the date that JPMorgan initiated the foreclosure proceedings
against Scott for default.10
Scott argues that JPMorgan did not establish the chain of assignment or ownership
of the beneficial interest in the deed of trust from Magnus to WaMu. As explained ante,
however, Scott himself alleges that WaMu notified him that it “retained custody” of his
loan after Magnus became insolvent, the assignment judicially noticed by the court
reflects the transfer of the beneficial interest to WaMu, and the second amended
complaint contains no well-pleaded facts from which the invalidity of the assignment
may be inferred. Based on the allegations of Scott’s pleading and the facts judicially
noticed, the only reasonable inference is that WaMu held the beneficial interest under the
deed of trust on Scott’s property as of the time WaMu’s assets were transferred to
JPMorgan.
Scott further argues (but did not allege in his second amended complaint) that
JPMorgan failed to establish that the assets transferred to it from WaMu included the
beneficial interest in the deed of trust. However, the P&A Agreement states that
JPMorgan is receiving “all right, title, and interest of the Receiver in and to all of the
assets (real, personal and mixed, wherever located and however acquired) . . . of the
Failed Bank [WaMu] whether or not reflected on the books of the Failed Bank as of Bank
Closing [September 25, 2008].” (Italics added.) Indeed, Scott admits in his second
amended complaint that JPMorgan acquired “certain assets” of WaMu from the FDIC
and, before and after that time, discussed the loan with Scott. Based on the allegations of
Scott’s pleading and the facts arising from the legal effect of the P&A Agreement, the
only inference is that JPMorgan received the beneficial interest under the deed of trust on
Scott’s property, and thus had standing to foreclose.
10
There is no dispute that the FDIC had legal authority to transfer WaMu’s assets to
JPMorgan. (See generally 12 U.S.C. § 1821(d)(2).)
24
4. Wrongful Foreclosure: Procedural Irregularities
In his wrongful foreclosure claim, Scott alleged that the “Notice of Default was
defective,” the amount stated as due and owing in the Notice of Default was incorrect,
and interest was overcharged. In this appeal, however, Scott insists that his wrongful
foreclosure claim is not based on procedural irregularities, but exclusively on JPMorgan’s
purported lack of standing to foreclose. Scott fails to establish a cause of action based on
his conclusory allegations of the deficiencies in the notice of default or other aspects in
the foreclosure process.
5. Wrongful Foreclosure: Loan Unenforceable
In his wrongful foreclosure claim, Scott alleges in paragraph 104 that
“[d]efendants had no right to foreclose at the time foreclosure proceedings were
commenced,” because fraud was perpetrated “in the loan origination process,” such that
there was no valid loan on the property and “therefore no possibility of default.” In
essence, Scott alleges, it was wrong for JPMorgan to sell his property (to which he had
obtained title before taking on the loan) for nonpayment on a loan that should be voided
ab initio, and if he can prove his claim of fraud in the inducement he should be able to
void the loan and receive clear title to his property.
This claim is also precluded by JPMorgan’s nonassumption of liability in
section 2.5 of the P&A Agreement. The P&A Agreement expressly extends to
borrower’s claims for “legal or equitable” relief, whether asserted “affirmatively or
defensively.” And agreements like the P&A Agreement, which further important public
policy (see Payne, supra, 924 F.2d at p. 111), do not leave the borrower without recourse,
since the borrower may seek relief from the FDIC (Yeomalakis, supra, 562 F.3d at p. 60).
Moreover, even if this claim were not precluded by the P&A Agreement, it would
be precluded because the allegations of the second amended complaint are insufficient to
state a claim for fraud in the inducement. Fraud must be pleaded with specificity. (See
Lazar, supra, 12 Cal.4th at p. 645.) Scott has pleaded in generalities, without identifying
the specific persons who made the misrepresentations, the precise statements made, or the
dates on which they were made.
25
In sum, as a matter of law based on Scott’s allegations (which we assume to be
true if well-pleaded, unless indisputably rebutted by facts judicially noticed) and facts
that were the proper subject of judicial notice, none of Scott’s theories of liability are
tenable. Scott has therefore failed to show any cognizable basis for the causes of action
he asserted in his second amended complaint, or any other cause of action. The court did
not err in sustaining JPMorgan’s demurrer to Scott’s second amended complaint.
C. Other Arguments of the Parties
1. Scott’s Failure to Tender
When asserting a cause of action to quiet title or wrongful foreclosure, a plaintiff
must usually allege tender of the amount of the secured debt. (See, e.g., Miller v. Provost
(1994) 26 Cal. App. 4th 1703, 1707 [“a mortgagor of real property cannot, without paying
his debt, quiet his title against the mortgagee”]; Karlsen v. American Sav. & Loan Assn.
(1971) 15 Cal. App. 3d 112, 117 [judgment on the pleadings properly granted where
plaintiff attempted to set aside trustee’s sale for lack of adequate notice, because “[a]
valid and viable tender of payment of the indebtedness owing is essential to an action to
cancel a voidable sale under a deed of trust”]; United States Cold Storage v. Great
Western Savings & Loan Assn. (1985) 165 Cal. App. 3d 1214, 1222-1223 [“the law is
long-established that a trustor or his successor must tender the obligation in full as a
prerequisite to challenge of the foreclosure sale”]; FPCI RE-HAB 01 v. E&G Investments,
Ltd. (1989) 207 Cal. App. 3d 1018, 1021 [tender rule is based on the equitable maxim that
a court of equity will not order a useless act performed; “if plaintiffs could not have
redeemed the property had the sale procedures been proper, any irregularities in the sale
did not result in damages to the plaintiffs”].)
Scott argues that there is no tender requirement where the borrower challenges the
foreclosure sale as void ab initio. (Citing Dimock v. Emerald Properties (2000) 81
Cal. App. 4th 868, 874-876 [foreclosure void and deed void on its face, where trustee who
gave notice and sold the property had been divested of all authority, as a matter of law, to
take those actions, in light of a recorded substitution of trustees]; Lona v. Citibank, N.A.
(2011) 202 Cal. App. 4th 89, 112-113 [tender requirement inapplicable where deed is void
26
on its face, the borrower’s action attacks the validity of the underlying debt, the person
who seeks to set aside the trustee’s sale has a counterclaim or setoff against the
beneficiary, or it would otherwise be inequitable to impose such a condition].)
Scott’s bases for claiming that the foreclosure sale is void, however, are his
assertions that the loan was procured by fraud in the first place, and that JPMorgan had
no standing to foreclose because it received no beneficial interest in the deed of trust. As
we have explained ante, while Scott claims the loan was procured by fraud, he has not
alleged fraudulent inducement with sufficient specificity. Furthermore, even if
JPMorgan’s purported lack of standing could render the sale void (as opposed to
voidable) – a matter we do not decide – we have already determined that JPMorgan did
have standing to foreclose as a matter of law, based on the allegations and the facts
judicially noticed by the trial court.
Lastly, Scott argues that he should not be required to tender because banks are not
trustworthy. We are not persuaded that the tender rule should be jettisoned simply
because a borrower says he distrusts the bank that foreclosed on his property. Scott’s
failure to allege tender establishes an alternative ground for sustaining the demurrer to his
wrongful foreclosure and quiet title claims, as well as to all claims seeking relief from
foreclosure or “implicitly integrated” with foreclosure. (Abdallah v. United Savings Bank
(1996) 43 Cal. App. 4th 1101, 1109; Arnolds Management Corp. v. Eischen (1984) 158
Cal. App. 3d 575, 577-580 [demurrer properly sustained without leave to amend as to
junior lienor, who sought to set aside a nonjudicial foreclosure sale and obtain damages
for a defect in the notice based on a wrongful foreclosure claim, as well as damages for
fraud and negligence, where the junior lienor had not alleged that it tendered the full
amount to the senior lienor].)
2. Effect of Verification of Pleading
Scott argues that because he verified his second amended complaint, the court
must give greater weight to the facts he alleges than the facts judicially noticed based on
the P&A Agreement. He provides no authority for this novel proposition, or for his
related argument that the court must accept his contentions, deductions, and legal
27
conclusions. Nor is the argument persuasive: averring that a conclusion of law is true of
one’s own personal knowledge does not make a conclusion of law more lawful or less
conclusory.
Scott fails to establish that the court erred in sustaining JPMorgan’s demurrer to
the second amended complaint in its entirety.
D. Denial of Leave to Amend
We review a denial of leave to amend for an abuse of discretion. (Debro, supra,
92 Cal.App.4th at p. 946.) To prevail on appeal, an appellant must usually demonstrate a
reasonable possibility that the defects in the complaint can be cured by amendment.
(E.g., Schifando v. City of Los Angeles (2003) 31 Cal. 4th 1074, 1081; see Vaca v.
Wachovia Mortgage Corp. (2011) 198 Cal. App. 4th 737, 743.) Thus, Scott must show
how the second amended complaint could further be amended and how, as so amended,
the pleading would state a cause of action. (Buller, supra, 160 Cal.App.4th at p. 992.)
Scott fails to show how he could further amend his complaint to state a cause of
action. He has had prior opportunities in the trial court to allege facts sufficient to state a
cause of action, and he fails to explain what specific factual amendment he would make
or why it would cure the deficiencies of his pleading.
In the trial court, Scott sought leave to amend based on the following: “Plaintiff
submits to the court that the discovery responses adduced in this case clearly demonstrate
the active involvement of JPMorgan Chase’s representatives with this transaction after
the acquisition by JPMorgan Chase of Washington Mutual.” This proffer is patently
insufficient, in that it fails to set forth any specific facts that Scott could allege to cure the
deficiencies of his pleading and state a cause of action.
In light of Scott’s vague and nonspecific proffer, as well as the allegations of the
second amended complaint, Scott’s prior opportunity to amend, and the arguments in his
appellate brief, Scott has not demonstrated any reasonable possibility that the defects of his
28
pleading can be cured by amendment. The court did not abuse its discretion in denying
him further leave to amend.11
III. DISPOSITION
The order sustaining JPMorgan’s demurrer to Scott’s second amended complaint
without leave to amend, which we deem to constitute the judgment of dismissal in the
trial court, is affirmed.
NEEDHAM, J.
We concur:
SIMONS, Acting P. J.
BRUINIERS, J.
11
At oral argument in this appeal, Scott requested leave to amend in order to add claims
for breach of contract and negligence based on JPMorgan’s conduct after it became the
beneficiary under his deed of trust. He also urged that the allegations of his pleading were
like those in Jolley – including an alleged breach of contract and wrongful foreclosure for
failing to provide Scott additional funds under his loan. Even on this basis, however, he fails
to demonstrate that he can state a cognizable cause of action or that the trial court abused its
discretion.
29
Scott v. JPMorgan Chase et al., A132741
Trial court: Solano County Superior Court
Trial judge: Hon. Scott L. Kayes
Michael D. Scott, in pro. per.; Terry J. Thomas and Nelson Goodell for Plaintiff
and Appellant.
AlvaradoSmith, Theodore E. Bacon and T. Matthew Hansen for Defendants and
Respondents.
30