Author Archives: dboggs07

David Kester v Citimortgage, Inc., et al. is NOT TO BE PUBLISHED

As of last week, Sept. 29, 2017, in the Arizona case of the Ninth Circuit Court of Appeals of David Kester v Citimortgage, Inc., et al., we have another precedent setting case that the courts have decided NOT to be published and to make public.  When a case is not to be published it simply means that the courts have ruled that the case is not to be used for quoting or able to be used as case files reference for another case.

This ruling is paramount to the evidence that the Trustee is owned and controlled by the banks and financial institutions.  The Trustee was never an independent third party to the transaction and did not act on behalf in any way to the owner of the title, David Kester.  This fact makes the argument, once again, that the Trustee is not independent and the financial institutions know this going in to the transaction, therein making a Deed of Trust contract void on its face.  The use of forgery to use a Deed of Trust contract is outlined in this opinion.  You can download this opinion by clicking the link below:

David-Kester-v-Citimortgage-Inc

You cannot use this case in your own case file, however you might find some of the opinion useful in your own argument structure.

* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *

 

  NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUITDAVID A. KESTER, on behalf of himself
and all others similarly situated,
Plaintiff-Appellant,v.CITIMORTGAGE INC.; et al.,
Defendants-Appellees.

excerpt

CitiMortgage and CR Title (“Defendants”) knowingly caused the recording of
invalid property documents in violation of ARIZ. REV. STAT. (“A.R.S.”) § 33-
420(A). The district court granted Defendants’ motion to dismiss. We reverse and
remand.

1. Kester has standing to bring this action, despite the fact that A.R.S. § 33-
411(C) provides that “an instrument affecting real property containing any defect,
omission or informality in the certificate of acknowledgment and which has been
recorded for longer than one year . . . shall be deemed to have been lawfully
recorded on and after the date of its recording.”1“The irreducible constitutional
minimum of standing consists of three elements. The plaintiff must have (1)
suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of
the defendant, and (3) that is likely to be redressed by a favorable judicial
decision.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016), as revised (May
24, 2016). Kester has adequately alleged all three elements. See Washington Env’tl
Council v. Bellon, 732 F.3d 1131, 1139 (9th Cir. 2013) (“The plaintiff . . . bears the
burden of proof to establish standing ‘with the manner and degree of evidence
required at the successive stages of the litigation.’ (quoting Lujan v. Defenders of
Wildlife, 504 U.S. 555, 561 (1992))).

First, “the recording of false or fraudulent documents that assert an interest
in a property may cloud the property’s title”; therefore, Kester has adequately
alleged “a distinct and palpable injury as a result of those clouds on [his former
property’s] title.” In re Mortg. Elec. Registration Sys., Inc., 754 F.3d 772, 783 (9th
Cir. 2014) (quoting Stauffer v. U.S. Bank Nat. Ass’n, 308 P.3d 1173, 1179 (Ariz.
Ct. App. 2013)). Second, this injury is fairly traceable to Defendants’ conduct:
despite receiving notice of the revocation of Kristen Lindner’s notary commission,
Defendants allegedly continued to use her notary services to execute Assignments
of Deeds of Trust, Substitutions of Trustee, Notices of Default, and Notices of
Trustee Sale for three months. Third, Kester’s “injury would be redressed by an
award of statutory damages, which [A.R.S. § 33-420(A)] makes available to
prevailing [former property owners].” See Tourgeman v. Collins Fin. Servs., Inc.,
755 F.3d 1109, 1116 (9th Cir. 2014), as amended on denial of reh’g and reh’g en
banc (Oct. 31, 2014).

2. The district court incorrectly held that A.R.S. § 33-420(A) requires Kester
to allege “material” invalidity in the trustee’s sale documents. Arizona caselaw
does not clearly resolve the question whether a plaintiff must allege materiality to
[…]

Click this link to download the entire Appeal ruling: David-Kester-v-Citimortgage-Inc

 

* * * * * * * * * *

I welcome those reading my story. I appreciate all of the emails I have been receiving. I also appreciate those who have registered and subscribe to this blog. If you have come from Facebook please comment on this site, rather than any Facebook post of this page due to the fact that there are many readers who are not part of Facebook forums, or even Facebook itself. I encourage all readers to put their comments on this site so that all of the information will be accessible to all readers from all parts of the internet. I urge you to join this site and receive the RSS feed, or bookmarking us, sharing us with your friends on Facebook and Twitter. If you know of anyone who might benefit from this information I urge you to pass on this website address! Share and let’s make some change together!

Thank you for stopping by.

SiteLock

©2014-2017 Doug Boggs All Rights Reserved

Precedent Jury Trial Against Allied

A jury in a suit that began in a Texas federal court back in 2011 as a whistleblower action recently entered a massive judgement against a mortgage originator for financial crisis conduct. The jury assessed the treble damages and penalties and increased the already large jury verdict in the amount of $93 Million into a $298 Million penalty.  The court also issued one of the first judicial opinions regarding how to assess penalties under the Financial Institutions Reform, Recovery, and Enforcement Act of 1989 (“FIRREA”).

This new ruling helps set precedent for arguing claims using FIRREA and violations of the False Claims Act “(FCA”).  It also helps set the stage for litigation against CEO’s of a corporation.  The suit held against Americus Mortgage Corporation, formerly known as Allied Home Mortgage Capital Corporation, one of its affiliates, and its CEO between 2001 and 2011.  The suit found that there was over a thousand false Federal Housing Administration (“FHA”) documents submitted for insurance claims by the Defendants.  The matter eventually led to a proceeding involving a five week lone jury trial, to which Allied was found to be liable for nearly 1200 loans that they collected FHA insurance claims to loans that had been wrongfully underwritten and were ineligible for FHA insurance, also 103 FHA insurance claims for loans originated in branches without the proper HUD registration and using registration numbers of other registered branches.  There also included 9 false annual certifications to compliance with HUD quality control requirements.  In addition, there were 18 falsified quality reports that were emailed from Allied to a HUD employee in 2009.

 

* * * * * * * * * *

I welcome those reading my story. I appreciate all of the emails I have been receiving. I also appreciate those who have registered and subscribe to this blog. If you have come from Facebook please comment on this site, rather than any Facebook post of this page due to the fact that there are many readers who are not part of Facebook forums, or even Facebook itself. I encourage all readers to put their comments on this site so that all of the information will be accessible to all readers from all parts of the internet. I urge you to join this site and receive the RSS feed, or bookmarking us, sharing us with your friends on Facebook and Twitter. If you know of anyone who might benefit from this information I urge you to pass on this website address! Share and let’s make some change together!

Thank you for stopping by.

SiteLock

©2014-2017 Doug Boggs All Rights Reserved

Guliex v PennyMac Holdings, LLC is NOT to be published in Official Reports

In the recently filed and “Unpublished in Official Reports” is the CA landmark case of Guliex v PennyMac Holdings, LLC.  Here in this post is the entire Opinion of the Appellate Court reversing the decision and the court’s subsequent holding on behalf of the Pro Per plaintiff Fred Guliex.  Although other parties are prohibited by law to cite or rely on opinions that are not certified for publication by the courts reading this might help shed light for parties to use in order to help shape their own arguments.

 

Enjoy and happy reading.

 

 

* * * * * * * * * * * * * * * * * * * * * * * * * *

FRED GULIEX, Plaintiff and Appellant,
v.
PENNYMAC HOLDINGS LLC, Defendant and Respondent.

No. F073142.
Court of Appeals of California, Fifth District.
Filed July 12, 2017.
APPEAL from a judgment of the Superior Court of Kern County, Super. Ct. No. CV280938, Sidney P. Chapin, Judge.

Fred Guliex, in pro. per.; and Stefanie N. West for Plaintiff and Appellant.

Aldridge Pite, Christopher L. Peterson, Jillian A. Benbow; Duncan Peterson and Christopher L. Peterson for Defendant and Respondent.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

OPINION

LEVY, J.

Plaintiff, a homeowner and borrower, sued the defendant financial institution for wrongs allegedly committed in connection with a nonjudicial foreclosure sale of his residence. Plaintiff’s main theory was that the financial institution did not own his note and deed of trust and, therefore, lacked the authority to foreclose under the deed of trust.

The financial institution convinced the trial court that (1) it was, in fact, the beneficiary under the deed of trust, (2) a properly appointed substitute trustee conducted the foreclosure proceedings, and (3) the plaintiff lacked standing to claim the foreclosure was wrongful. The financial institution argued its chain of title to the deed of trust was established by facts stated in recorded assignments of deed of trust and a recorded substitution of trustee. The trial court took judicial notice of the recorded documents. Based on these documents, the court sustained a demurrer to some of the causes of action and granted summary judgment as to the remaining causes of action. On appeal, plaintiff contends he has standing to challenge the foreclosure and, furthermore, the judicially noticed documents do not establish the financial institution actually was the beneficiary under the deed of trust. We agree.

As to standing, the holding in Yvanova v. New Century Mortgage Corp. (2016) 62 Cal.4th 919 (Yvanova) clearly establishes plaintiff has standing to challenge the nonjudicial foreclosure on the ground that the foreclosing party lacked the authority to initiate the foreclosure because it held no beneficial interest under the deed of trust.

As to establishing facts by judicial notice, it is well recognized that courts may take notice of the existence and wording of recorded documents, but not the disputed or disputable facts stated therein. (Yvanova, supra, 62 Cal.4th at p. 924, fn. 1Herrera v. Deutsche Bank National Trust Co. (2011) 196 Cal.App.4th 1366, 1375 (Herrera).) Under this rule, we conclude the facts stated in the recorded assignments of deed of trust and the substitution of trustee were not subject to judicial notice. Therefore, the financial institution did not present evidence sufficient to establish its purported chain of title to the deed of trust. Consequently, the financial institution failed to show it was the owner of the deed of trust and had the authority to foreclose on plaintiff’s residence.

We therefore reverse the judgment and remand for further proceedings.

FACTS

The Loan and Deed of Trust

On April 19, 2005, plaintiff Fred Guliex (Borrower) purchased real property located on Judith Avenue in Arvin, California (the residence). He financed the purchase of the residence by obtaining a $156,000 loan from Long Beach Mortgage Company. The loan documents included a note and a deed of trust, both of which were dated June 21, 2005. In the deed of trust, Borrower granted Long Beach Mortgage Company, a Delaware corporation with an address in Anaheim, a security interest in the residence as collateral for the loan. The deed of trust was recorded on June 30, 2005, in the official records of Kern County.

The deed of trust named Long Beach Mortgage Company as both the beneficiary and the trustee. Paragraph 20 of the deed of trust stated the note together with the deed of trust could be sold one or more times without prior notice to Borrower and, as a result of such a sale, the loan servicer might change. Paragraph 24 of the deed of trust addressed substitute trustees by stating “Lender, as its option, may from time to time appoint a successor trustee to any Trustee appointed hereunder by an instrument executed and acknowledged by Lender and recorded in the office of the Recorder of the county in which the [residence] is located.” Paragraph 24 also stated “the successor trustee shall succeed to the title, powers and duties conferred upon the Trustee herein and by Applicable Law.”

2008 Seizure of Washington Mutual Bank

Washington Mutual Bank is described in documents presented in this case as the successor in interest of Long Beach Mortgage Company, the original lender. The record does not show how Washington Mutual Bank became Long Beach Mortgage Company’s successor. For instance, the record does not describe (1) an assignment of assets from Long Beach Mortgage Company to Washington Mutual Bank, (2) a corporate acquisition of Long Beach Mortgage Company by Washington Mutual Bank, or (3) a merger of that resulted in Washington Mutual Bank being the surviving entity.

The report of the loan auditor retained by Borrower and included in the appellate record refers to the seizure of Washington Mutual Bank by federal regulators and a deal to sell the bulk of its operations to JPMorgan Chase. The report and the remainder of the appellate record provides few details about the seizure and the transfer of Washington Mutual Bank’s assets, but published cases describe those events. (See Glaski v. Bank of America (2013) 218 Cal.App.4th 1079, 1085 (Glaski)Jenkins v. JPMorgan Chase Bank, N.A. (2013) 216 Cal.App.4th 497, 504,disapproved on another ground in Yvanova, supra, 62 Cal.4th at p. 939, fn. 13.) We note that (1) the United States Office of Thrift Supervision seized Washington Mutual Bank in September 2008; (2) the Federal Deposit Insurance Corporation (FDIC) acted as receiver; and (3) unspecific assets and liabilities were sold by the FDIC to JPMorgan Chase Bank, N.A. (Glaski, supra, at p. 1085.) As in Glaski, it is possible, though not certain, that JPMorgan Chase Bank acquired Borrower’s deed of trust when it purchased assets of Washington Mutual Bank from the FDIC. (Ibid.)

2009 Default

Borrower defaulted on his loan payments in 2009. During his deposition, Borrower testified he called Chase to ask about a loan modification even though he had been making payments to Chase regularly. Borrower said he was told that Chase would modify the loan, but he needed to be three months behind. Borrower testified, “I got three months behind, and then they started—I got stacks of paper this high. They started that modification, and it never got anyplace. That’s—that’s how I got in this situation.” It appears that Borrower did not resume making payments under the loan.

2011 Documents

On July 26, 2011, three documents relating to the deed of trust were recorded in the official records of Kern County. The documents were stamped with consecutive documents numbers, from which we infer the sequence of their recording.

The first document recorded was an assignment of deed of trust dated July 25, 2011, which stated JPMorgan Chase Bank, National Association, successor in interest to Washington Mutual Bank, successor in interest to Long Beach Mortgage Company, granted, assigned and transferred to JPMorgan Chase Bank, National Association all beneficial interest under the deed of trust together with the notes or notes secured by the deed of trust.

The second document was a substitution of trustee dated July 25, 2011, that stated California Reconveyance Company was substituted for the original trustee, Long Beach Mortgage Company. The substitution of trustee also stated the “undersigned” was the present beneficiary under the deed of trust. It was signed by an officer of JPMorgan Chase Bank, National Association, successor in interest to Washington Mutual Bank, successor in interest to Long Beach Mortgage Company.

The third document was a notice of default and election to sell under deed of trust that stated the residence was in foreclosure because Borrower was behind on his payments and listed the past due amount as $38,616.91. The notice of default was signed and recorded by California Reconveyance Company, as trustee. A declaration of compliance with Civil Code section 2923.5, subdivision (b) was attached to the notice of default. The declaration was signed by Clement J. Durkin for JP Morgan Chase Bank, National Association and stated the borrower had been contacted to discuss his financial situation and to explore the options for avoiding foreclosure.

Over three months later, on October 27, 2011, California Reconveyance Company recorded a notice of trustee’s sale. The notice stated Borrower was in default under the deed of trust and estimated the amount of unpaid balance and other charges at $196,269.23. The notice stated a public auction of the residence would be held on November 23, 2011, in Bakersfield.

2012 Bankruptcy

The trustee’s sale scheduled for November 2011 was not held. Borrower asserts that he filed a Chapter 13 bankruptcy in 2012 after months of unsuccessful attempts to modify the loan. Exactly when Borrower’s bankruptcy proceeding was concluded is not disclosed in the appellate record.

2013 Documents

On August 26, 2013, California Reconveyance Company recorded a second notice of trustee’s sale. The notice stated Borrower was in default under the deed of trust and estimated the amount of unpaid balance and other charges at $218,300.83. The notice stated a public auction of the residence would be held on September 18, 2013, in Bakersfield.

A “California Assignment of Deed of Trust” dated September 14, 2013, was recorded in Kern County on November 15, 2013. It stated JPMorgan Chase Bank, National Association, granted, sold, assigned, transferred and conveyed unto PennyMac Mortgage Investment Trust Holdings I, LLC, all beneficial interest under the deed of trust.

On November 20, 2013, the residence was sold by California Reconveyance Company at a trustee’s sale. On November 22, 2013, the Kern County Assessor-Recorder recorded a trustee’s deed upon sale stating California Reconveyance Company as trustee of the deed of trust granted and conveyed all right, title and interest in the property to PennyMac Holdings, LLC (PennyMac). The trustee’s deed upon sale stated (1) a default occurred, a notice of default and election to sell was recorded, and the default still existed at the time of the trustee’s sale; (2) the trustee, in exercise of its powers under the Deed of Trust, sold the property at public auction on November 20, 2013; and (3) the grantee, PennyMac, being the highest bidder at the sale, “became the purchaser of said property for the amount bid being $126,000.00 in lawful money of the United States, or by credit bid if the Grantee was the beneficiary of said Deed of Trust at the time of said Trustee’s Sale.”

Borrower testified that before the trustee’s sale, he had received a paper from Chase stating bidding at the sale would start at $60,000. In Borrower’s opinion, the property was worth approximately $80,000 in November 2013.

The day after the trustee’s sale, a “Corporate Assignment of Deed of Trust” was signed by a vice president of JPMorgan Chase Bank, National Association. The assignment was dated November 21, 2013, and stated JPMorgan Chase Bank, National Association, granted, sold, assigned, transferred and set over the deed of trust without recourse, representation or warranty, together with all right, title and interest secured by the deed of trust, to PennyMac. The corporate assignment was recorded on November 22, 2013, immediately before the trustee’s deed upon sale was recorded.

PROCEEDINGS

In December 2013, Borrower filed this lawsuit against PennyMac, PennyMac Loan Services, and California Reconveyance Company. In August 2014, Borrower filed a first amended complaint, which is the operative pleading in this appeal and contains headings for five causes of action. All five causes of action are based on or related to Borrower’s basic position that the November 2013 foreclosure sale was illegal.

Borrower alleged Long Beach Mortgage Company never sold, transferred or granted the deed of trust and note to PennyMac and, thus, PennyMac “is merely a third-party stranger to the loan transaction.” Borrower also alleged that PennyMac actually has no secured or unsecured right, title or interest in the note and deed of trust and has no right to collect mortgage payments or demand mortgage payments. Borrower specifically disputed the validity of the assignment recorded in July 2011 and the two assignments recorded in November of 2013. In Borrower’s view, PennyMac must establish a complete and unbroken chain of title from the origination of the loan to the transaction that established PennyMac’s purported ownership of the deed of trust. Borrower also alleged illegal “robodocs” were used in connection with the foreclosure and the loan and deed of trust had been fully satisfied prior to the foreclosure sale.

In September 2014, PennyMac filed a demurrer to the amended complaint. PennyMac argued that Borrower lacked standing to challenge its authority to foreclose and failed to allege facts showing prejudice or the ability and willingness to tender payment of the debt.

The trial court sustained the demurrer as to three of the five causes of action alleged in the amended complaint. The trial court concluded Borrower lacked standing to challenge the foreclosure and PennyMac’s chain of title was perfected.

In August 2015, PennyMac filed a motion for summary judgment, contending that Borrower could not establish one or more of the elements of his fourth and fifth causes of action. The trial court agreed and granted the motion. As a result of the summary judgment and the order sustaining the demurrer, the entire case was resolved without a trial.

DISCUSSION

I. DEMURRERS

A. Standard of Review

1. Stating a Cause of Action under Any Legal Theory

Appellate courts independently review an order sustaining a general demurrer and make a de novo determination of whether the pleading alleges facts sufficient to state a cause of action under any legal theory. (McCall v. PacifiCare of Cal., Inc.(2001) 25 Cal.4th 412, 415.) The demurrer is treated as admitting all material facts properly pleaded, but does not admit the truth of contentions, deductions or conclusions of law. (City of Dinuba v. County of Tulare (2007) 41 Cal.4th 859, 865.)

2. Rule Prohibiting “Speaking” Demurrers

A corollary of the rule that a demurrer admits all material facts properly pleaded is the principle that a defendant may not offer evidence of additional facts to support a demurrer. Our Supreme Court has stated “facts have no place in a demurrer.” (Bainbridge v. Stoner (1940) 16 Cal.2d 423, 431.) Demurrers supported by evidence are referred to as “speaking” demurrers and usually are improper. (See Mohlmann v. City of Burbank (1986) 179 Cal.App.3d 1037, 1041, fn. 2; 5 Witkin, Cal. Procedure (5th ed. 2008) Pleading, § 948, p. 364 [“the `speaking demurrer’ (one that contains factual matters) is not recognized in this state”].)

3. Judicial Notice and Its Limitations

The general rule against speaking demurrers is subject to an explicit statutory exception. The grounds for a demurrer may be based on the face of the complaint or “any matter of which the court is required to or may take judicial notice.” (Code Civ. Proc., § 430.30, subd. (a); see Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) Thus, a court considering a demurrer may take judicial notice of the existence, content and authenticity of public records and other specified documents. (Mangini v. R.J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1063, overruled on other grounds in In re Tobacco Cases II (2007) 41 Cal.4th 1257, 1262.) However, courts do not take judicial notice of the truth of the factual matters asserted in those documents. (Ibid.)

The application of these principles defining the scope of judicial notice is important to the outcome of this appeal. Their application is illustrated by a case where the trial court took judicial notice of various recorded documents—specifically, a deed of trust, two assignments of the deed of trust, two substitutions of trustee, and a notice of default and election to sell under the deed of trust. (Poseidon Development, Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 1116.) The appellate court stated:

“[T]he fact a court may take judicial notice of a recorded deed, or similar document, does not mean it may take judicial notice of factual matters stated therein. [Citation.] For example, the First Substitution [of Trustee] recites that Shanley `is the present holder of beneficial interest under said Deed of Trust.’ By taking judicial notice of the First Substitution, the court does not take judicial notice of this fact, because it is hearsay and it cannot be considered not reasonably subject to dispute.” (Id. at p. 1117.)

Similarly, in Herrera, supra, 196 Cal.App.4th 1366, the court concluded a substitution of trustee stating the bank in question was the present beneficiary under the deed of trust did not establish the bank was the beneficiary because the statement was hearsay and the fact was disputed. (Id. at p. 1375.) The court also stated:

“Nor does taking judicial notice of the assignment of deed of trust establish that the Bank is the beneficiary under the 2003 deed of trust. The assignment recites that JPMorgan Chase Bank, `successor in interest to WASHINGTON MUTUAL BANK, SUCCESSOR IN INTEREST TO LONG BEACH MORTGAGE COMPANY’ assigns all beneficial interest under the 2003 deed of trust to the Bank. The recitation that JPMorgan Chase Bank is the successor in interest to Long Beach Mortgage Company, through Washington Mutual, is hearsay. Defendants offered no evidence to establish that JPMorgan Chase Bank had the beneficial interest under the 2003 deed of trust to assign to the Bank. The truthfulness of the contents of the assignment of deed of trust remains subject to dispute [citation], and plaintiffs dispute the truthfulness of the contents of all of the recorded documents.” (Ibid.; see Yvanova, supra, 62 Cal.4th at p. 924, fn. 1)

To complete our overview of judicial notice, we recognize the rule that courts do not judicially notice the truth of factual matters asserted in documents is subject to a narrow exception. Evidence Code section 622 provides: “The facts recited in a written instrument are conclusively presumed to be true as between the parties thereto, or their successors in interest; but this rule does not apply to the recital of a consideration.” (See Satten v. Webb (2002) 99 Cal.App.4th 365, 375 [recitals in exhibits attached to complaint].) Of course, a party must establish that it actually is a successor in interest before the conclusive presumption applies.

B. PennyMac’s Demurrer and Borrower’s Standing

1. The Demurrer and the Trial Court’s Ruling

PennyMac’s demurrer argued Borrower lacked standing to challenge PennyMac’s authority to foreclose. The section of PennyMac’s brief arguing Borrower lacked standing to challenge the foreclosure relied on cases where the foreclosure process was underway, but no trustee’s sale had been completed. (See Gomes v. Countrywide Home Loans, Inc. (2011) 192 Cal.App.4th 1149.) Extrapolating from the preforeclosure cases, PennyMac argued Borrower could not challenge the completed foreclosure and, thus, the entire action was subject to demurrer without leave to amend.

The trial court was convinced by PennyMac’s arguments about standing. The minute order stated Borrower lacked standing to challenge the nonjudicial foreclosure process, the securitization process, and the assignment of the promissory note because (1) Borrower did not dispute the underlying debt and (2) he failed to allege tender or the ability to tender. As to Borrower’s curing these defects by amendment, the court stated Borrower “does not seem to be able to do so, since the chain of title of PennyMac is perfected.” (Capitalization omitted.)

2. Borrower’s Standing Argument

Borrower’s opening brief contains a heading asserting the trial court erred in granting summary judgment to PennyMac because he had standing to challenge the assignments of the deed of trust. PennyMac’s appellate brief suggests this court should treat Borrower as having waived challenges to the demurrer because those specific challenges were not adequately raised and briefed.

We reject PennyMac’s suggestion and conclude Borrower has raised the question of his standing to challenge PennyMac’s right to foreclose. Borrower, who was representing himself in this proceeding during briefing, might have used the term “summary judgment” in the heading of his brief in a nontechnical way to mean the judgment entered without a trial (i.e., summarily) rather than with the intention of restricting his argument solely to the order granting the motion for summary judgment. This interpretation is consistent with Borrower’s statement that his “appeal is from the final judgment.” It also is consistent with the first paragraph on page 12 of Borrower’s opening brief, where he (1) asserted the trial court erred in sustaining the demurrer as to three causes of action on the ground he lacked standing and (2) specifically (and correctly) argued the court could not know the chain of title of PennyMac was perfected. Therefore, reading Borrower’s appellate briefs as a whole, we conclude he adequately raised the standing issue for purposes of challenging both the demurrer and the summary judgment.

3. The Law of Borrower Standing

PennyMac’s demurrer and the trial court’s ruling on that demurrer were made before the California Supreme Court addressed “[u]nder what circumstances, if any, may the borrower challenge a nonjudicial foreclosure on the ground that the foreclosing party is not a valid assignee of the original lender.” (Yvanova, supra, 62 Cal.4th at p. 928.) Our high court decided that question as follows:

“We conclude a home loan borrower has standing to claim a nonjudicial foreclosure was wrongful because an assignment by which the foreclosing party purportedly took a beneficial interest in the deed of trust was not merely voidable but void, depriving the foreclosing party of any legitimate authority to order a trustee’s sale.” (Id. at pp. 942-943.)

The court in Yvanova also considered whether a borrower must show prejudice when it addressed the defendants’ argument that an allegedly invalid assignment leading to a foreclosure by an unauthorized party causes no harm or prejudice to a borrower in default of a loan because the actual holder of the beneficial interest under the deed of trust could have foreclosed on the property. (Yvanova, supra, 62 Cal.4th at p. 937.) The court stated:

“As it relates to standing, we disagree with defendants’ analysis of prejudice from an illegal foreclosure. A foreclosed-upon borrower clearly meets the general standard for standing to sue by showing an invasion of his or her legally protected interests [citation]—the borrower has lost ownership to the home in an allegedly illegal trustee’s sale.” (Ibid.)

The court also rejected the view that tender of the amount of the secured indebtedness, or an excuse of tender, was needed to establish the borrower’s standing. (Yvanova, supra, 62 Cal.4th at p. 929, fn. 4.)

4. Application of Standing Principles to This Case

The trial court concluded Borrower lacked standing to challenge the nonjudicial foreclosure and the assignment of the note and deed of trust to PennyMac. The court’s minute order supported this conclusion by stating Borrower did not dispute the underlying debt and failed to allege tender or the ability to tender. In Yvanova,our Supreme Court unanimously rejected the argument that borrower standing required a showing of prejudice and a tender of the balance due on the loan. (Yvanova, supra, 62 Cal.4th at pp. 929, fn. 4, 937.) Based on Yvanova, the order sustaining the demurrer to the first three causes of action in Borrower’s amended complaint cannot be upheld due to an absence of standing. Under Yvanova,Borrower has standing to challenge a foreclosure by an unauthorized entity.

C. Another Ground for the Demurrer—PennyMac’s Chain of Title

1. Contentions and Trial Court’s Ruling

PennyMac’s demurrer argued Borrower’s amended complaint offered baseless theories that attempted “to challenge PennyMac’s authority to foreclose, while at the same time ignoring the valid chain of title leading up to the Trustee’s Sale.” Under PennyMac’s view of the record, “there is a full chain of assignments of the Deed of Trust, ending with the assignment to the foreclosing beneficiary PennyMac.”

Borrower opposed the demurrer by arguing that there were huge gaps in the chain of title and PennyMac was a third party stranger to the secured debt. Borrower relied on the rule that taking judicial notice of a document does not establish the facts asserted in the document and argued the recorded assignments of deed of trust did not establish PennyMac was, in fact, the owner or holder of a beneficial interest in the deed of trust. Borrower also cited Herrera to support his argument about the limits placed on judicial notice.

The trial court reached the chain-of-title theory as an alternative ground for sustaining the demurrer as to three causes of action. The court stated Borrower failed to allege sufficient facts to constitute a violation of law, and seemed unable to do so, because the chain of title of PennyMac was perfected. We disagree. As explained below, the facts alleged in the amended complaint and the facts judicially noticeable do not establish an unbroken or perfect chain of title from Borrower to PennyMac.

2. The Links in PennyMac’s Purported Chain of Title

“Links” in a chain of title are created by a transfer of an interest in the underlying property from one person or entity to another. An examination of each link in the purported chain of title relied upon by PennyMac reveals that certain links were not established for purposes of the demurrer. Our analysis begins with a description of each link in the purported chain (and each related document, where known), beginning with the husband and wife who sold the residence to Borrower and ending with the trustee’s sale to PennyMac.

Link One-Sale: Clarence and Betty Dake sold the residence to Borrower pursuant to a grant deed dated April 19, 2005, and recorded on June 30, 2005. The parties do not dispute this transfer.

Link Two-Loan: Borrower granted a beneficial interest in the residence to Long Beach Mortgage Company pursuant to a deed of trust dated June 21, 2005, and recorded on June 30, 2005. The parties do not dispute this transfer.

Link Three-Purported Transfer: Long Beach Mortgage Company purportedly transferred its rights to Washington Mutual Bank by means of a document or transaction not identified in the appellate record. Also, the appellate record does not identify when the purported transaction occurred. Borrower disputes the existence of this and subsequent transfers of the deed of trust.

Link Four-Purported Transfer: Washington Mutual Bank purportedly transferred its rights to JPMorgan Chase Bank, National Association in an unidentified transaction at an unstated time.

Link Five-Assignment: JPMorgan Chase Bank, National Association, successor in interest to Washington Mutual Bank, successor in interest to Long Beach Mortgage Company, purportedly transferred the note and all beneficial interest under the deed of trust to “JPMorgan Chase Bank, National Association” pursuant to an assignment of deed of trust dated July 25, 2011, and recorded on July 26, 2011.

Link Six(A)-Assignment: JPMorgan Chase Bank, National Association transferred all beneficial interest in the deed of trust to PennyMac Mortgage Investment Trust Holdings I, LLC pursuant to a “California Assignment of Deed of Trust” dated September 14, 2013, and recorded on November 15, 2013.

Link Seven-Trustee’s Sale: California Reconveyance Company, as trustee under the deed of trust, (1) sold the residence to PennyMac at a public auction conducted on November 20, 2013, and (2) issued a trustee’s deed of sale dated November 21, 2013 and recorded on November 22, 2013. PennyMac, the grantee under the deed upon sale, was described in the deed as the foreclosing beneficiary.

Link Six(B)-Purported Assignment: The day after the trustee’s sale, JPMorgan Chase Bank, National Association executed a “Corporate Assignment of Deed of Trust” dated November 21, 2013, purporting to transfer the deed of trust without recourse to PennyMac Holdings, LLC. The assignment was recorded November 22, 2013. This assignment was signed (1) after JPMorgan Chase Bank, National Association had signed and recorded the “California Assignment of Deed of Trust” described earlier as Link Six(A) and (2) after the trustee’s sale was conducted on November 20, 2013. Consequently, it is unclear whether any interests were transferred by this “corporate” assignment.

3. Links Three and Four Are Missing from the Chain

The purported chain of title relied upon by PennyMac presents the following questions: First, has it been established that Long Beach Mortgage Company transferred the deed of trust to Washington Mutual Bank? Second, has it been established that Washington Mutual Bank transferred the deed of trust to JPMorgan Chase Bank, National Association? The answer to these questions is “no.” The record before this court is insufficient to establish either of the transfers actually occurred.

This conclusion is compelled by the rules of law governing judicial notice, which were discussed in part I.A.3, ante. The analysis adopted in Herrera is particularly apt because that case also involved a loan made by Long Beach Mortgage Company that the foreclosing entity asserted was owned subsequently by Washington Mutual Bank and its successor in interest, JPMorgan Chase Bank. In Herrera, the bank foreclosing under a 2003 deed of trust relied on the recitations in a recorded assignment stating the assignor, JPMorgan Chase Bank, was the successor in interest to Washington Mutual Bank, which was the successor in interest to Long Beach Mortgage Company. (Herrera, supra, 196 Cal.App.4th at p. 1375.) The appellate court concluded that judicial notice of the recorded assignment from JPMorgan Chase Bank to the foreclosing bank did not establish that the foreclosing bank was the beneficiary under the 2003 deed of trust. (Ibid.)

The Herrera decision was over three years old when PennyMac filed its demurrer. Despite the fact that Borrower’s opposition papers cited the decision, neither PennyMac nor the trial court referred to the case, much less explained why it was not controlling authority. We conclude Herrera correctly applied an established rule of law against taking judicial notice of facts asserted in a recorded document subject to judicial notice. Furthermore, that rule was confirmed in Yvanova when the California Supreme Court determined the trial court properly took judicial notice of the recorded deed of trust, assignment of the deed of trust, substitution of trustee, notices of default and of trustee’s sale, and the trustee’s deed upon sale and then stated: “We therefore take notice of their existence and contents, though not of disputed or disputable facts stated therein.” (Yvanova, supra, 62 Cal.4th at p. 924, fn. 1, italics added.)

Based on Herrera and Yvanova, we conclude the recorded documents do not establish that JPMorgan Chase Bank, National Association was the owner of the beneficial interest in the deed of trust. It follows that the recorded documents do not establish that PennyMac became the owner of any beneficial interest under the deed of trust. These are the same conclusions this court reached in another case involving an assignment by JPMorgan Chase Bank. (Glaski, supra, 218 Cal.App.4th at p. 1102.) Restated in terms of the links described in part I.C.2, ante,PennyMac failed to establish the third and fourth links in the chain of title upon which it relied.

4. Problems with Link Six(A)

An additional break in the chain of title preceding the trustee’s sale is revealed by the September 2013 “California Assignment of Deed of Trust” that identified “PennyMac Mortgage Investment Trust Holdings I, LLC” as the assignee of all beneficial interest in the deed of trust. In comparison, the name of the entity that purchased the residence at the trustee’s sale by credit bidding $126,000 was given as “PennyMac Holdings, LLC.”

How do we know that the entity identified as “PennyMac Mortgage Investment Trust Holdings I, LLC” in the assignment of deed of trust is the same entity subsequently identified as “PennyMac Holdings, LLC” in the trustee’s deed? That information was provided to the trial court in the second footnote of the memorandum of points and authorities submitted by PennyMac in support of its demurrer. The footnote stated in full: “PennyMac Mortgage Investment Trust Holdings I, LLC changed its name to PennyMac Holdings, LLC.” It is well established under California law that speaking demurrers are improper. Accordingly, in sustaining the demurrer, the trial court should not have relied on the footnote’s assertion of fact to establish a link in the chain of title relied upon by PennyMac.

For purposes of the demurrer, the second attempted assignment by JPMorgan Chase Bank, National Association, which was dated November 21, 2013, and named “PennyMac Holdings, LLC” as the assignee should have been regarded as ineffective, transferring nothing. A similar conclusion was reached by the Fourth District in Sciarratta v. U.S. Bank National Assn. (2016) 247 Cal.App.4th 552 (Sciarratta), when it considered two assignments to different assignees executed by JPMorgan Chase Bank, as successor in interest to Washington Mutual Bank. (Id. at pp. 557, 562.) The court concluded the borrower adequately alleged a second attempted assignment, which occurred in November 2009, was void because “when Chase purported to assign Sciarratta’s promissory note and deed of trust to Bank of America, Chase had nothing to assign, having previously (in Apr. 2009) assigned the promissory notes and deed of trust to Deutsche Bank.” (Id. at p. 563.) As a result, the court concluded the foreclosure by Bank of America, the second assignee, was wrongful because Bank of America could not have acquired any interest in the deed of trust pursuant to the second attempted assignment. (Id. at p. 565.) Similarly, the November 21, 2013, assignment to “PennyMac Holdings, LLC” must be regarded as void and ineffective for purposes of the demurrer.

5. Summary

The purported chain of title relied upon by PennyMac is missing more than one link. Thus, the trial court erred in concluding the chain of title was perfected. It follows that the order sustaining the demurrer cannot be upheld on the ground that the chain of title presented by PennyMac precludes Borrower from establishing elements of the first three causes of action stated in his amended complaint.

D. Tender and Prejudice

1. Issue Not Resolved in Yvanova

Earlier we addressed whether Borrower’s failure to tender the full amount owed on the debt secured by the deed of trust precluded him from having standing in this lawsuit. Based on the holding in Yvanova, we concluded the failure to tender did not deprive Borrower of standing. However, our Supreme Court explicitly identified the scope of its decision:

“Our review being limited to the standing question, we express no opinion as to whether plaintiff Yvanova must allege tender to state a cause of action for wrongful foreclosure under the circumstances of this case. . . . As to prejudice, we do not address it as an element of wrongful foreclosure. We do, however, discuss whether plaintiff has suffered a cognizable injury for standing purposes.” (Yvanova, supra,62 Cal.4th at p. 929, fn. 4.)

Accordingly, we now address the elements of a wrongful (i.e., unauthorized) foreclosure cause of action that were not reached by our Supreme Court.

2. Types of Wrongful Foreclosure

As a general proposition, “[a] beneficiary or trustee under a deed of trust who conducts an illegal, fraudulent or willfully oppressive sale of property may be liable to the borrower for wrongful foreclosure.” (Yvanova, supra, 62 Cal.4th at p. 929.) Our Supreme Court stated “[a] foreclosure initiated by one with no authority to do so is wrongful for purposes of such an action.” (Ibid.)

Initially, we consider the label “wrongful foreclosure” for a cause of action that alleges a foreclosure was illegal in some way or other and whether that label facilitates an understanding the underlying legal theory or, alternatively, is so general that it might lead to confusion. There are many ways in which the foreclosure process might violate applicable statutes, the common law, or the loan documents. (See Glaski, supra, 218 Cal.App.4th at p. 1100, fn. 17 [claims a foreclosure is “wrongful” can be tort-based, statute-based and contract-based].) From another perspective, the legal theories presented under the label “wrongful foreclosure” can be divided into two basic categories of illegality.

The first category of illegality involves procedural irregularities in a foreclosure sale conducted by the rightful trustee at the directions of the rightful beneficiary. In other words, foreclosures in this category are wrongful because of the procedural irregularities or defects in the foreclosure process. (See Knapp v. Doherty (2004) 123 Cal.App.4th 76, 81, 92-94 [procedural irregularity alleged was the premature service of the notice of trustee’s sale] (Knapp).) We adopt the term “irregular foreclosure” to describe this particular category of wrongful foreclosure.

In contrast, the second category of illegality involves a “foreclosure initiated by one with no authority to do so.” (Yvanova, supra, 62 Cal.4th at p. 929.) In other words, foreclosures in this category are wrongful because they are initiated or conducted by the wrong party. When the foreclosing entity had no legal authority to pursue a trustee’s sale, “such an unauthorized sale constitutes a wrongful foreclosure.” (Yvanova, supra, at p. 935.) Stated another way, under California law, “only the original beneficiary, its assignee or an agent of one of these has the authority to instruct the trustee to initiate and complete a nonjudicial foreclosure sale.” (Yvanova, supra, 62 Cal.4th at p. 929; see Civ. Code, § 2924, subd. (a)(6).) Consequently, when a foreclosing party claims the authority to initiate and complete a nonjudicial foreclosure sale as an assignee, the borrower may challenge that party’s status as a true assignee by alleging an assignment or other transfer in the purported chain never occurred—that is, does not exist. (Yvanova, supra, 62 Cal.4th at p. 939Sciarratta, supra, 247 Cal.App.4th at pp. 563-564Barrionuevo v. Chase Bank, N.A. (N.D.Cal. 2012) 885 F.Supp.2d 964, 973.) One way, but not the only way, to allege an assignment never occurred is to allege grounds that would render a documented assignment void—that is, a nullity. (Yvanova, supra, 62 Cal.4th at p. 939.)

Based on the many uses of the term “unauthorized” in Yvanova, we adopt the term “unauthorized foreclosure” to describe this second type of wrongful foreclosure. Accordingly, the remainder of this opinion uses the terms “irregular foreclosure” and “unauthorized foreclosure” to identify the two types of legal theories that fall under the broader term “wrongful foreclosure.” Our goal in using these labels is to aid in distinguishing the two legal theories and their constituent elements.

3. Tender as an Element of the Unauthorized Foreclosure Claim

We conclude that tender is not an element that must be pleaded and proven to establish an unauthorized foreclosure cause of action. We reached the same conclusion in Glaski, supra, 218 Cal.App.4th at page 1100 and were joined in that conclusion by Division One of the Fourth District in Sciarratta, supra, 247 Cal.App.4th at page 568.

In contrast, we recognize that tender is an element of a cause of action alleging an irregular foreclosure. (McElroy v. Chase Manhattan Mortgage Corp. (2005) 134 Cal.App.4th 388, 394 [complaint failed to state an irregular foreclosure cause of action because it did not allege a proper tender to cure the default].) A borrower attacking a nonjudicial foreclosure sale on the ground of procedural irregularity must overcome a rebuttable presumption that the sale was conducted regularly and fairly by pleading and proving an improper procedure and the resulting prejudice. (Knapp, supra, 123 Cal.App.4th at p. 86, fn. 4.) Allegations of tender, an ability to tender, or an excuse for not tendering are connected to showing that the procedural irregularity was prejudicial or harmful to the borrower. The theory of prejudice or harm is that if proper procedures had been followed, the default in the loan would have been cured by the homeowner and the foreclosure would not have been completed.

Requiring a borrower to tender payment to a party that holds no rights or interests in the loan or deed of trust makes little sense. Consequently, we do not extend the tender requirement that is an element of an irregular foreclosure cause of action to the cause of action for unauthorized foreclosure. As a result, the order sustaining the demurrer cannot be upheld on the ground that Borrower was required to plead tender, or an excuse justifying the failure to tender.

4. Prejudice as an Element to the Unauthorized Foreclosure Claim

PennyMac also contends that Borrower failed to allege any prejudice resulting from the allegedly defective foreclosure. Based on this contention, we consider whether prejudice is an essential element of a cause of action for unauthorized foreclosure.

The elements of an irregular foreclosure cause of action are (1) procedural irregularities in the foreclosure process that caused the sale of real property pursuant to the power of sale in the deed of trust to be illegal, fraudulent or willfully oppressive; (2) prejudice or harm to the party attacking the foreclosure sale; and (3) in cases where the borrower challenges the sale, the borrower tendered the amount of the secured indebtedness or was excused from tendering. (Sciarratta, supra, 247 Cal.App.4th at pp. 561-562; see Knapp, supra, 123 Cal.App.4th at p. 86, fn. 4.)

For example, in Knapp, the borrowers claimed the notice of trustee’s sale was defective because it was mailed prematurely. (Knapp, supra, 123 Cal.App.4th at p. 91.) Specifically, it was mailed less than three months after the recordation of the notice of default, which is contrary to the three-month waiting period required by Civil Code section 2924, subdivision (a)(2). The court concluded the slightly premature service of the notice was a minor procedural irregularity that “was in no way prejudicial to Borrowers.” (Knapp, at p. 81.) As a result, the court concluded the irregular service of the notice of trustee’s sale did not invalidate the foreclosure sale and affirmed the summary judgment granted by the trial court. (Id. at pp. 94, 102.)

We conclude that elements of a cause of action alleging an irregular foreclosure are different from the elements of a cause of action alleging an unauthorizedforeclosure. “`[W]here a plaintiff alleges that the entity lacked authority to foreclose on the property, the foreclosure sale would be void.'” (Glaski, supra, 218 Cal.App.4th at p. 1101.) When the foreclosure sale is void for lack of authority, we conclude the borrower need not plead prejudice as a separate element of the cause of action. First, prejudice seems obvious. (See Sciarratta, supra, 247 Cal.App.4th at p. 565 [“homeowner experiences prejudice or harm when an entity with no interest in the debt forecloses”].) The true beneficiary has not started the foreclosure process and, as a result, the borrower’s rights in the property would continue until the true beneficiary decides to foreclose and completes that process. Thus, the timing of the completed, unauthorized foreclosure necessarily has occurred before any authorized foreclosure that might occur. The later date of a potentially authorized sale necessarily means the earlier, unauthorized sale worked to the detriment of the borrower. In other words, the borrower is prejudiced by the fact the borrower lost rights in the property sooner than would have occurred otherwise.

Second, leaving the timing aspect aside, PennyMac has identified no public policy or other rationale that justifies restricting the borrower’s ability to set aside a voidforeclosure sale. (See Sciarratta, supra, 247 Cal.App.4th at p. 565 [strong policy reasons favor conclusion that unauthorized foreclosure is harmful].) In Glaski, we concluded the remedy of setting aside the foreclosure sale was available to a borrower who establishes that the foreclosure sale is void because the entity lacked the authority to foreclose. (Glaski, supra, 218 Cal.App.4th at pp. 1100-1101.) The uncertainty over whether the true beneficiary under the deed of trust, once identified, will foreclose or, alternatively, will negotiate a loan modification, need not be addressed in a complaint when the borrower is pursuing a claim that will render the foreclosure sale void. Void means void—a void thing is as no thing, a nullity. (Yvanova, supra, 62 Cal.4th at p. 929.) Thus, the uncertainty of the true beneficiary’s reaction to the default does not render the unauthorized foreclosure sale any less void.

In sum, we conclude prejudice is not an element of a cause of action alleging an unauthorized foreclosure.

E. Plaintiff’s Causes of Action

The first cause of action in the amended complaint is labeled “quiet title.” The legal theory underlying this cause of action is an unauthorized foreclosure and the relief sought is setting aside the November 2013 trustee’s sale. Based on our earlier discussion of the unauthorized foreclosure cause of action and the remedy of setting aside the trustee’s sale, we conclude Borrower’s first cause of action has alleged sufficient facts to state a claim for relief.

The second cause of action asserts violations of Business and Professions Code section 17200 and alleges PennyMac engaged in unfair business practices, including executing and recording documents without the legal authority to do so and acting as the beneficiary under the deed of trust without the legal authority to do so. Borrower has alleged a claim for unauthorized foreclosure. It follows that he also has stated a claim for unfair business practices under Business and Professions Code section 17200. (Glaski, supra, 218 Cal.App.4th at p. 1101Susilo v. Wells Fargo Bank, N.A. (C.D.Cal. 2011) 796 F.Supp.2d 1177, 1196.)

The third cause of action is labeled “quasi contract” and alleges an unjust enrichment would occur if PennyMac were allowed to retain any payments or to keep the residence because PennyMac had no legal authority to collect payments or foreclose on the residence. Borrower alleges the equitable remedy of restitution is appropriate to restore him to his former position by return of the property or its equivalent in money. We recognize that unjust enrichment is not an independent cause of action under California law, but will allow Borrower to proceed with the so-called third cause of action because it seeks a type of relief that may be different from the relief sought under the first and second causes of action.

Therefore, we conclude PennyMac’s demurrer should have been overruled as to all causes of action in the amended complaint.

F. Plaintiff’s Theory Related to a Securitized Trust[1]

In closing our discussion of the demurrer and whether Borrower has stated facts sufficient to constitute a cause of action under a recognized theory of law, we note that Borrower’s amended complaint alleged, based on information and belief, that his loan was sold to a securitized trust named the Long Beach Mortgage Loan Trust 2005-WL2. Borrower further alleged that the defendants failed to endorse the note and failed to properly assign the deed of trust in a timely manner as set forth in the pooling and servicing agreement.

Plaintiff’s allegations about an attempted transfer of his note and deed of trust to a securitized trust do not address how that attempted transfer relates to the chain of title relied upon by PennyMac or otherwise explain why PennyMac could not be the owner of the note and deed of trust. Consequently, even if the factual allegations (as distinguished from the legal conclusions) about an attempt to include Borrower’s note and deed of trust in a securitized trust are true, those allegations are insufficient to establish that PennyMac was not a valid assignee of the note and deed of trust. Furthermore, if Borrower’s allegations attempt to present the legal theory that a botched assignment to a securitized trust caused the debt and deed of trust to disappear, evaporate or otherwise cease to exist, we explicitly reject that legal theory. We are aware of no principle of law holding that an ineffective or void assignment of a debt extinguishes the debt. Instead, if a purported assignment is a nullity, the situation remains the same as though the purported assignment was never attempted and the purported assignor continues to own the debt and remains the beneficiary under the deed of trust.

In summary, Borrower’s allegations about the securitized trust are insufficient to identify a break in the chain of title relied upon by PennyMac and are insufficient to extinguish the loan. Therefore, the question of whether any attempt to assign Borrower’s note and deed of trust to a securitized trust was void or merely voidable is not properly before this court. Accordingly, we will not offer an advisory opinion on how to interpret McKinney’s Consolidated Laws of New York Annotated: Estates, Powers and Trusts Law section 7-2.4.

II. SUMMARY JUDGMENT

A. Standard of Review

A motion for summary judgment “shall be granted 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).) A moving party is entitled to judgment as a matter of law when it establishes by admissible evidence that the “action has no merit.” (Code Civ. Proc., § 437c, subd. (a).)

A defendant moving for summary judgment can meet this burden by presenting evidence demonstrating that one or more elements of each cause of action cannot be established. (Code Civ. Proc., § 437c, subds. (o), (p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849-850, 853-854.) A motion for summary judgment or summary adjudication will be defective if the moving party fails to reference evidence establishing, either directly or by inference, each material fact the moving party claims is undisputed. (Pierson v. Helmerich & Payne Internat. Drilling Co. (2016) 4 Cal.App.5th 608, 617 (Pierson).)

Appellate courts independently review an order granting summary judgment. (Pierson, supra, 4 Cal.App.5th at p. 617.) In performing this independent review, appellate courts apply the same three-step analysis as the trial court. (Ibid.) In this case, the second step of that analysis determines the outcome. The second step addresses whether the moving party carried its initial burden of establishing facts that show the plaintiff’s causes of action had no merit. (Ibid.) In completing this step, we (1) examine the evidence referenced as support for the facts stated in the moving party’s separate statement of undisputed facts and (2) determine whether that evidence establishes either directly or by inference, the material facts that the moving party asserts are undisputed. (Haney v. Aramark Uniform Services, Inc.(2004) 121 Cal.App.4th 623, 632; see Cal. Rules of Court, rule 3.1350(d)(3).) The evidence must be viewed in the light most favorable to the plaintiff, with any evidentiary doubts or ambiguities resolved in the plaintiff’s favor. (McDonald v. Antelope Valley Community College Dist. (2008) 45 Cal.4th 88, 96-97.)

B. Scope of PennyMac’s Motion for Summary Judgment

PennyMac’s motion for summary judgment addressed the two causes of action that survived its demurrer. Those causes of action were the fourth and the fifth set forth in the amended complaint. In the caption of the amended complaint, Borrower labeled his fourth cause of action as a violation of the California Homeowner Bill of Rights and listed Civil Code sections 2924, subdivision (a)(6) and 2924.17. His fifth cause of action was labeled as a violation of Civil Code sections 2934, subdivision (a)(1)(A) and 2936. The fifth cause of action challenges the validity of the substitution of trustee recorded in July 2011 on a variety of grounds.

PennyMac’s notice of motion for summary judgment asserted that the fourth and fifth causes of action were without merit because Borrower was unable to prove or establish one or more elements of the cause of action. PennyMac summarizes the fourth cause of action as alleging “robodocs” were used in the foreclosure process and alleging PennyMac “failed to provide competent and relevant support to the recorded Assignments of Deed of Trust and the Substitution of Trustee.” As to the lack of support for the recorded assignment of the deed of trust, PennyMac contends (1) Borrower failed to provide evidence that any of the recorded documents related to the nonjudicial foreclosure were invalid and (2) it “provided direct evidence of the full chain of title leading up to the Trustee’s Sale.”

C. Material Facts Are Disputed

1. PennyMac’s Assertions of Undisputed Material Facts

PennyMac challenges Borrower’s fourth and fifth causes of action by asserting the same 45 undisputed material facts. PennyMac’s main factual points are that JPMorgan Chase Bank, National Association held the beneficial interest under the deed of trust, validly appointed a substitute trustee and subsequently transferred the beneficial interest to PennyMac.

JPMorgan Chase Bank, National Association’s ownership of the beneficial interest under the deed of trust is addressed by undisputed material fact No. 8 in PennyMac’s separate statement, which asserts:

“JPMorgan Chase Bank, National Association, successor in interest to Washington Mutual Bank, successor in interest to Long Beach Mortgage Company assigned the interest under the Deed of Trust to JPMorgan Chase Bank, National Association (“Chase”) by an Assignment of Deed of Trust dated July 25, 2011 and recorded on July 26, 2011, in the Official Records of Kern County, California.”

The only evidence PennyMac cites to support this assertion of fact is exhibit C to its request for judicial notice, which is the assignment recorded in July 2011.

2. Borrower’s Response

Borrower’s separate statement responded to PennyMac’s undisputed material fact No. 8 by stating he did “not dispute the fact the assignment was recorded, [but did] dispute the contents of the assignment.” Borrower’s opposition to the motion stated the disputed questions of fact included (1) whether PennyMac acquired possession of the note and deed of trust through properly recorded assignments, (2) whether PennyMac could demonstrate proof of ownership of the note and deed of trust, (3) whether the deed of trust was separated from the note, (4) whether the substitution of trustee was executed by the rightful party, and (5) the authenticity of the assignments recorded prior to the foreclosure sale.

3. PennyMac Did Not Carry Its Initial Burden

We conclude PennyMac did not carry its initial burden of establishing facts that show the plaintiff’s causes of action had no merit. (See Pierson, supra, 4 Cal.App.5th at p. 617.) In particular, the July 2011 assignment of deed of trust that states JPMorgan Chase Bank, National Association was the successor in interest to Washington Mutual Bank, which was the successor in interest to the original lender, Long Beach Mortgage Company is insufficient to establish that JPMorgan Chase Bank, National Association in fact held an interest in the deed of trust as the successor of those two entities. As discussed in parts I.A.3 and I.C.3, ante,courts may take judicial notice of the existence and wording of recorded documents, “though not of disputed or disputable facts stated therein.” (Yvanova, supra, 62 Cal.4th at p. 924, fn. 1.) In Herrera, supra, 196 Cal.App.4th 1366, the appellate court reversed an order granting the foreclosing bank’s summary judgment on the ground that the assignment from JPMorgan Chase Bank to the foreclosing bank did not establish the foreclosing bank actually was the beneficiary under the 2003 deed of trust. (Id. at p. 1375.) The applicable principles governing judicial notice require the same result in this case.

PennyMac’s failure to present sufficient evidence to establish JPMorgan Chase Bank, National Association actually held an interest in the deed of trust breaks the chain of title relied upon by PennyMac. This break calls into question the validity of all later recorded documents in the chain, including the substitution of trustee that designated California Reconveyance Company as the new trustee under the deed of trust.

Consequently, we conclude that PennyMac failed to establish facts that precluded Borrower from proving the elements of the fourth and fifth cause of action stated in the amended complaint. Based on this conclusion and our analysis of the demurrer, we conclude the judgment must be reversed.

DISPOSITION

The judgment is reversed. The trial court is directed to vacate its order sustaining the demurrer without leave to amend and to enter a new order overruling the demurrer. The trial court also is directed to vacate its order granting the motion for summary judgment and to enter a new order denying that motion. Plaintiff Guliex shall recover his costs on appeal.

HILL, P.J. and GOMES, J., concurs.

[1] The mortgage securitization process is described in Yvanova, supra, 62 Cal.4th at page 930,footnote 5. The mortgage-backed securities issued by a securitized trust are described in Glaski, supra,218 Cal.App.4th at p. 1082, footnote 1. Those descriptions need not be repeated here.

 

This post was originally published HERE – Gi;iex v PennyMac Holdings LLC

* * * * * * * * * *

I welcome those reading my story. I appreciate all of the emails I have been receiving. I also appreciate those who have registered and subscribe to this blog. If you have come from Facebook please comment on this site, rather than any Facebook post of this page due to the fact that there are many readers who are not part of Facebook forums, or even Facebook itself. I encourage all readers to put their comments on this site so that all of the information will be accessible to all readers from all parts of the internet. I urge you to join this site and receive the RSS feed, or bookmarking us, sharing us with your friends on Facebook and Twitter. If you know of anyone who might benefit from this information I urge you to pass on this website address! Share and let’s make some change together!

Thank you for stopping by.

SiteLock

©2014-2017 Doug Boggs All Rights Reserved

Alexa, are you connected to the CIA?

“Alexa, are you connected to the CIA?” is a question buzzing around the internet.  You can view some of those asking that question to their Alexa HERE

In the United States, an article in the December 15, 1890 issue of the Harvard Law Review, written by attorney Samuel D. Warren and future U.S. Supreme Court Justice Louis Brandeis, entitled “The Right to Privacy”, is often cited as the first implicit declaration of a U.S. right to privacy. Warren and Brandeis wrote that privacy is the “right to be let alone”, and focused on protecting individuals. This approach was a response to recent technological developments of the time, such as photography, and sensationalist journalism, also known as “yellow journalism”.

A right to privacy is explicitly stated under Article 12 of the Universal Declaration of Human Rights:

No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honor and reputation. Everyone has the right to the protection of the law against such interference or attacks.

Although the Constitution does not explicitly include the right to privacy, the Supreme Court has found that the Constitution implicitly grants a right to privacy against governmental intrusion from the First Amendment, Third Amendment, Fourth Amendment, and the Fifth Amendment. This right to privacy has been the justification for decisions involving a wide range of civil liberties cases, including Pierce v. Society of Sisters, which invalidated a successful 1922 Oregon initiative requiring compulsory public education, Griswold v. Connecticut, where a right to privacy was first established explicitly, Roe v. Wade, which struck down a Texas abortion law and thus restricted state powers to enforce laws against abortion, and Lawrence v. Texas, which struck down a Texas sodomy law and thus eliminated state powers to enforce laws against sodomy.

The 1890 Warren and Brandeis article “The Right To Privacy”, is often cited as the first implicit declaration of a U.S. right to privacy. This right is frequently debated. Strict constructionists argue that no such right exists (or at least that the Supreme Court has no jurisdiction to protect such a right), while some civil libertarians argue that the right invalidates many types of currently allowed civil surveillance (wiretaps, public cameras, etc.).

Most states of the United States also grant a right to privacy and recognize four torts based on that right:

Intrusion upon seclusion or solitude, or into private affairs; Public disclosure of embarrassing private facts; Publicity which places a person in a false light in the public eye; and Appropriation of name or likeness. Also, in some American jurisdictions the use of a person’s name as a keyword under Google’s AdWords for advertising or trade purposes without the person’s consent has raised certain personal privacy concerns.

On March 11, 2015, Intelligence Squared US, an organization that stages Oxford-style debates, held an event centered on the question, “Should the U.S. adopt the ‘Right to be Forgotten’ online?” The side against the motion won with a 56% majority of the voting audience.

Welcome to the new world order. smart phones, smart tvs, etc.

 

* * * * * * * * * *

I welcome those reading my story. I appreciate all of the emails I have been receiving. I also appreciate those who have registered and subscribe to this blog. If you have come from Facebook please comment on this site, rather than any Facebook post of this page due to the fact that there are many readers who are not part of Facebook forums, or even Facebook itself. I encourage all readers to put their comments on this site so that all of the information will be accessible to all readers from all parts of the internet. I urge you to join this site and receive the RSS feed, or bookmarking us, sharing us with your friends on Facebook and Twitter. If you know of anyone who might benefit from this information I urge you to pass on this website address! Share and let’s make some change together!

Thank you for stopping by.

SiteLock

©2014-2017 Doug Boggs All Rights Reserved

I am grateful

I am grateful for all of the 45 new subscribers that joined my website by days end yesterday. More are coming in as we speak adding to the nearly 1500 that have already joined. This shows me how much this information needs to come out. I am grateful for my articles that are being shared and passed around the internet. I am also grateful for the patience that all of my thousands of readers have granted me in their anticipation for my upcoming book releases, “The Unlawful Unlawful Detainer” and “A Quantum of Justice”.
 
I thought it was challenging to sue and personally litigate against Wells Fargo Bank, one of the nations largest and corrupt corporations, however, I find it nearly as challenging to turn that experience into the “tell all” informative non-fiction books that I have been putting together.
 
Trying to rewrite the legalese into a prose that can be understood by the masses is quite difficult. This is information that all should read. It takes “The Big Short” and “The Inside Job” and brings it home to everyone. Whether you are a homeowner or a renter it exposes just how all of the Wall Street and Main Street banking institutions are effecting you directly.
 
Writing one book is hard enough. I am seeing the light at the end of the proverbial tunnel. I appreciate your patience. Subscribe for early release and member discounts.

 

* * * * * * * * * *

I welcome those reading my story. I appreciate all of the emails I have been receiving. I also appreciate those who have registered and subscribe to this blog. If you have come from Facebook please comment on this site, rather than any Facebook post of this page due to the fact that there are many readers who are not part of Facebook forums, or even Facebook itself. I encourage all readers to put their comments on this site so that all of the information will be accessible to all readers from all parts of the internet. I urge you to join this site and receive the RSS feed, or bookmarking us, sharing us with your friends on Facebook and Twitter. If you know of anyone who might benefit from this information I urge you to pass on this website address! Share and let’s make some change together!

Thank you for stopping by.

SiteLock

©2014-2017 Doug Boggs All Rights Reserved

Dear David,

Dear David,

You are in the state of CA, therefore, ALL of the documents pertaining to the borrower’s (your) original deed of trust purchase agreement are fraudulent on its face and therefore VOID.  This is true, but very difficult to argue in the court of law due to the fact that if the court negates your contract on this issue, it means that the court contends that every deed of trust contract in CA is VOID.  No court wants to rule on this.  So, it must be argued carefully and precisely and in a way to which a court might rule in your favor.

(This post is In response to a comment and email exchanges to a reader.)

The bank misrepresented and deceived the borrower at the inception of the deed of trust agreement.  The bank substituted a Trustee without your permission, acceptance or knowledge.  This is against the Statue of Frauds (1677) wherein EVERY change in a real estate contract MUST be agreed to and signed by ALL parties involved in the agreement throughout the life of the agreement.  This is BASIC real estate contract law.  The other problem with the substituted change is that the bank did this without your knowledge or consent.  This means that they are able to change the Trustee at their will.  According to SB1638 (1998) the bank is allowed to change the Trustee at their discretion.  This means that the acting Trustee is not allowed to NOT be substituted if they deem so otherwise.  This means that the Trustee is NOT independent, as it was ruled by the CA Supreme Court in 1978 in Garfinkle v Superior Court of Contra Costa County [21 Cal.3d 268}.  The independence of the Trustee is deemed imperative to the non-judicial foreclosure process because the courts have given the Trustee the presumption of correctness.  This means that it is the intention of the non-judicial process that the Trustee act as the court and therein what the Trustee states as true and correct is deemed true and correct.  This is due to the fact that the Trustee is to be independent as based on the Supreme Court’s ruling in 1978.  However, in 1996, the Senate Bill 1638 became enacted law in 1998.  This Bill allowed the banks to substitute the Trustee at the will of the bank.  This means that the Trustee is controlled by the financial institution.  This means that there is no independence of a Trustee at the inception of the Deed of Trust agreement.  This means that if the bank does not inform the borrower of this fact at the inception of the contract agreement then they have deceived the borrower into using a Deed of Trust agreement.  This means that through this misrepresentation by the banks of the material fact that the Trustee is not independent, that the Deed of Trust agreement is in fact fraudulent on its face and therefore VOID.  This means that there was never a legal Deed of Trust contract agreement to begin with.  Let this sink in!!

This means that you acquiesce to a viable contract if you argue ANYTHING outside of these facts.  This is what the opposition wants you to get to.  The fact that there is no contract means that absolutely anything you argue pertaining to the contract brings you to the point of agreeing that there in fact actually was a contract.  This is what they want.

First, they must prove that the original and subsequent substituted trustees in the Deed of Trust agreement are in fact independent and can protect the borrower from ANY wrongdoing by a financial institution or any other party acting on behalf of the financial institution throughout the duration of the deed of trust agreement.  They are incapable of proving this issue.  This is where they do not want to be, because they cannot prove that the Trustee is independent.  If the original and any subsequent Trustee is not independent and can protect either party’s best interest in a deed of trust agreement then there is no deed of trust agreement.  This was the intent of the CA Supreme Court ruling in 1978 that the trustee is entrusted to protect BOTH parties from any wrongdoing to the other party in a deed of trust agreement.

As the Trustee is given the presumption of correctness in all of the their actions in a non-judicial foreclosure procedure in the state of CA, it is assumed that all of the documents and actions by either party that the trustee is entrusted to deem as true and correct are in fact so.  This means that the trustee is entrusted to make sure that the bank follow all of the rules to the deed of trust and the power of sale clause, CA Civil Code 2924 et al, in the state of CA.  If the bank controls the trustee and are allowed to break the rules of the power of sale clause then the trustee is incapable of acting in the best interest of the borrower at any point of the duration of the deed of trust agreement.  This means that the borrower was deceived by the bank in that the bank knew all along that the trustee was not independent and was in fact controlled by the bank since the inception of the deed of trust agreement.  This means that there is legal contract.

If there is no true legal deed of trust contract agreement then the bank lent the borrower money under false pretense and the deed of trust is void and the money borrowed by the borrower is not backed by any real estate agreement.  The money borrowed was in fact borrowed under a different premise to which is not arguable in this specific case and must be decided in a different court.  But, the court herein, MUST rule, based on this premise that the deed of trust is in fact VOID.  Now, since there is not deed of trust contract the borrower is the true owner of the title then there is no claim by the bank to any part of the borrower’s title.  Therefore, the bank must now prove to the court of their standing to foreclose.  If the bank has no legal agreement to any claim to title based on their intended use of a deed of trust contract which is fact deemed void then the bank has no standing for any claim whatsoever to the borrower’s title.  They might have claim to the money that they lent the borrower, but this would be a personal loan or some other instrument, but this is another argument in another court of law and cannot be included in this case.  The borrower is the owner of the property and the money.

Whatever documents a bank or trustee acting on behalf of the bank might show are bogus simply based on the fact that they first must prove that they have standing.  They cannot prove standing in ANY non-judicial foreclosure procedure because they are incapable of proving that the trustee is in fact independent in their position.  Since the CA supreme court stated that this must be the case, and the SB1638 states otherwise, and the banks have acted against the CA supreme court ruling and the courts have allowed the banks to control the trustee using 1638, then the trustee is not independent and therefore, based on CA Supreme Court and the Power of Sale clause (CA Civ Code 2924) the deed of trust is in fact void.  If it is void then the bank has no standing.

Also, this means that since the inception of the deed of trust agreement between the lender and the borrower, ANY monies collected on the basis of this agreement have been collected so illegally.  This means that for every month, and every year that the borrower has paid for the money borrowed based on this agreement have been billed and collected for under false pretense and must be returned to the borrower until the courts can rectify how the bank is able to actually collect on the money that they lent due to the fact that there is no legal binding agreement in place that instructs the borrower appropriately and legally to pay the debt off to the lender.  Since the deed of trust agreement is bogus, the bank has no legal basis to come for any debt to the lent money to the borrower.  They have no legal right to challenge the borrower’s title whatsoever.

I am not an attorney and do not offer any of this information as legal advice.  Any information found herein is not to be construed as legal advice.  Please consult a licensed attorney for any further advice on this issue.  This is simply an explanation of how I proceeded in my case based on the legal information that I collected during my case.  I suggest that you talk to your own attorney or licensed legal counsel prior to acting on any of this information.  This information does not in any way constitute any legal binding agreement between the author or the reader.

I hope that this helps clear things up for you.

Doug Boggs

 

 

* * * * * * * * * *

I welcome those reading my story. I appreciate all of the emails I have been receiving. I also appreciate those who have registered and subscribe to this blog. If you have come from Facebook please comment on this site, rather than any Facebook post of this page due to the fact that there are many readers who are not part of Facebook forums, or even Facebook itself. I encourage all readers to put their comments on this site so that all of the information will be accessible to all readers from all parts of the internet. I urge you to join this site and receive the RSS feed, or bookmarking us, sharing us with your friends on Facebook and Twitter. If you know of anyone who might benefit from this information I urge you to pass on this website address! Share and let’s make some change together!

Thank you for stopping by.

SiteLock

©2014-2017 Doug Boggs All Rights Reserved

Berman v HSBC, Appeal to Vacate the Order is now open for publication

This groundbreaking Berman v HSBC, Appeal to Vacate the Order is open for publication.  The order was approved for publication on May 3, 2017.  You can download this Appeal here: C081487-1

The question that I always have comes down to this:

How are wrongful, inaccurate, and/or fraudulent documents able to be filled with the County Recorder’s Office by a Trustee on behalf of any financial institution?  Independent studies done in the County Recorder’s Office in San Francisco County have shown that over 90% of every deed of trust loan contains wrong, invalid, inaccurate and/or fraudulent documents.  Thereby tainting each property title filed in the state.  How can this happen?  And it is still happening for every loan, every day since Jan 1, 1998.

In my case against Wells Fargo Bank, the bank falsely used and misrepresented their use of Cal Civ Code 2923.5g in their illegal non-judicial foreclosure procedure against me.  The Civil Code used in this Appeal shown below is the next code in the banks immediate lines of defense for the banks and fraudulent trustees misuse and manipulation of the modification process and their ability to file fraudulent paperwork in a non-judicial foreclosure procedure due to the fact that the Trustee is not independent, as the CA State Supreme Court ruled that they were supposed to be independent and arms length in a Deed of Trust contract.  This ruling from the CA Supreme Court was filed in 1978 from the Garfinkle v Superior Court of Contra Costa County case. However, in 1996 the CA legislature created SB 1638 which redefined how a substitution of trustee is able to take place.  This bill became enacted law in Jan 1998, therein making EVERY deed of trust agreement issued by a financial institution since that date fraudulent on its face and therefore VOID.  When I exposed this in court it was then that the judge removed my case file from public view and dismissed my case on a bogus technicality in order to not have the information become public.

This Appeal Order seen below helps to give strength to the argument that I was using, which anyone can use since that argument is valid with any Deed of Trust agreement written in CA since Jan 1998.  You is a link for you to download a PDF of this Appeal C081487-1

i am currently working with two state Senators to try to re-write and overturn the law that was passed back in 1996 based from SB 1638.  It was that bill that allowed the banks to substitute a trustee at their will rather than having to follow the existing rules of the CA Civil Code.  Due to this it negated the validity of the independence of the Trustee.  Therefore, without the independence of the trustee in a deed of trust agreement, there is no valid deed of trust agreement as it is outlined in the Power of Sale clause and CA Civil Code 2924, et al.  The lack of independence defies the rules of the deed of trust and allows fraudulent paperwork to be filed and no oversight to any wrongdoing by a financial institution or a trustee in a non-judicial foreclosure procedure.  Therein, this allows any bank or fraudulent trustee to illegally foreclose on anyone, anytime, anywhere without reason or validity to any paperwork.

In a deed of trust agreement there is instituted a trustee to act as the courts thereby bypassing a standard foreclosure procedure in the court system.  The non-judicial foreclosure process was designed to help alleviate the burden to the court system over the standard mortgage foreclosure process.  Since the trustee is taxed with acting on behalf of the court it was designed and substantiated in the [Garfinkle v Superior Court of Contra Costa County] Supreme Court ruling that the trustee was to be independent due to the fact that they represent the court and are given the presumption of correctness in their actions due to the fact that they are to be independent and arms length throughout the life of the deed of trust contract.

When the bank lobbyists wrote the SB 1638 in 1996 it was to quietly strip the independence away from the trustee therein setting the stage for any deed of trust to be able to be foreclosed on whether someone was current on their payments or not.  In fact, this allowed someone who paid cash for their property and had never even entered into a loan agreement to be foreclosed on.  Based on the fact that the trustee is fraudulent and owned, controlled and manipulated by the banks or fraudulent law firms they are able to file fraudulent paper and submit this paper to the County Recorder’s Office with no oversight as to any legitimacy to the validity of any information contained in the papers being filed.  This fraud against the court has been going on with EVERY document being filed for a deed of trust agreement and for ANY and EVERY non-judicial foreclosure procedure in the state of CA since Jan 1, 1998.

Let that sink in for a moment.  Oh, also note that there are 36 deed of trust states in the United States.  you can do the math…

I look forward to seeing how this new ruling will be able to help substantiate and moreover help to solidify the argument that I brought forward to the courts, but due to the corruption of the judge, was subsequently silenced.

 

* * * * * * * * * * * * * * *

(The following Appeal has just been released for publication as of May 3, 2017)

STANLEY P. BERMAN, Plaintiff and Appellant,
v.
HSBC BANK USA, N.A., Defendant and Respondent.

No. C091497
Court of Appeals of California, Third District, Nevada.
Filed April 11, 2017.
Appeal from the Superior Court No. CU14080886.

When defendant HSBC Bank USA, N.A. (HSBC) notified plaintiff Stanley P. Berman in writing that HSBC was denying his application for a loan modification, HSBC told him he had 15 days to appeal the denial. Under the law, however, Berman actually had 30 days to appeal. (See Civ. Code,[1] § 2923.6, subd. (d) [“[i]f the borrower’s application for a first lien loan modification is denied, the borrower shall have at least 30 days from the date of the written denial to appeal the denial”].)

Berman brought this action for injunctive relief under section 2924.12 on the theory that “the denial letter . . . [wa]s a material violation of sub[division] (d) [of section 2923.6] in that [the letter] only provide[d] fifteen days for appeal.” The trial court sustained HSBC’s demurrer to Berman’s complaint without leave to amend based on the conclusion that Berman had not alleged a violation of section 2923.6. On Berman’s appeal, we conclude the trial court erred: the denial letter constituted a material violation of section 2923.6 because it substantially misstated the time Berman was allowed by the law to appeal HSBC’s denial of his application for a loan modification. Moreover, we find no merit in any of HSBC’s alternate arguments for affirming the trial court. Accordingly, we will reverse.

FACTUAL AND PROCEDURAL BACKGROUND

Because this appeal arises from the sustaining of a demurrer, we summarize the facts alleged in the complaint, accepting as true the properly pleaded factual allegations. (See Debrunner v. Deutsche Bank National Trust Co. (2012) 204 Cal.App.4th 433, 435.)

Berman is the record owner of the property located at 15342 Carrie Drive, Grass Valley, California, where he resides. Berman defaulted on his home mortgage and a notice of default was recorded. Sometime prior to September 16, 2014, Berman submitted a complete application for a loan modification to HSBC, asserting a significant change in financial condition. By letter dated September 18, 2014, HSBC denied Berman’s request for a loan modification. HSBC’s denial letter stated that Berman had until October 2, 2014, (i.e., 15 days) to file an appeal of the decision.[2]

On December 2, 2014, Berman commenced this action against HSBC by filing a complaint seeking injunctive relief. In his complaint, he asserted that because HSBC’s denial letter gave him only 15 days to appeal the denial, when section 2923.6, subdivision (d) provides for an appeal period of at least 30 days, the denial letter was “in violation of sub[division] (d) in that it only provides fifteen days for appeal [and] thus the requirements of sub[division] (f) describing the matter mandated to be included in the denial letter have not be[en] followed and the trustee sale can not [sic] legally proceed.”[3] He further asserted that “[n]o significant injury to Defendants will occur through the granting of the injunction as all they would need to do is issue an amended denial letter which complies with the 30 day appeal requirement and then they would be legally entitled to conduct a trustee’s sale once that period had expired.” Thus, it was apparent that Berman was seeking injunctive relief that would require HSBC to issue a new denial letter before HSBC could proceed to notice and conduct a trustee’s sale.

The day after he filed his initial complaint, Berman filed a first amended verified complaint. The only difference between the two complaints was that the amended complaint was verified.

In July 2015, HSBC demurred to the first amended complaint, arguing (among other things) that “[s]ection 2923.6 only prohibits the recording of a notice of default or notice of sale, or conducting a sale, unless certain requirements are met,” and HSBC “did[] not actually conduct[] the sale within [the appeal] period. In fact, to date, the sale has not occurred in the six months after the September 18, 2014 Denial Letter.” The trial court sustained the demurrer with leave to amend, reasoning that “no violation of [subdivision (e) of section 2923.6 wa]s alleged” because Berman did not allege that HSBC “recorded a Notice of Sale or conducted a trustee’s sale prior to 31 days after [he] was notified in writing of the denial of the modification.”[4]

On August 31, 2015, Berman filed a second amended complaint. The factual allegations in this complaint are similar in all relevant respects to the allegations in the first amended complaint (and the original complaint). In the second amended complaint, however, Berman asserted for the first time that “the denial letter . . . is a material violation of subdivision (d) in that it only provides fifteen days for appeal.” Berman further asserted that he was entitled to an injunction under section 2924.12 enjoining HSBC from conducting a trustee’s sale until the court determined that the violation was corrected.[5]

HSBC demurred to the second amended complaint, again asserting that it had not violated section 2923.6 because it had not conducted a trustee’s sale within the statutory appeal period. The trial court agreed and sustained the demurrer without leave to amend because again Berman did not allege that HSBC “recorded a Notice of Sale or conducted a trustee’s sale prior to 31 days after [he] was notified in writing of the denial of the modification.” With respect to Berman’s reference to section 2924.12, the court noted that “that provision allows for injunctive relief if there is a material violation of another provision” and “[h]ere, Plaintiff has not demonstrated a violation of another provision.” The trial court subsequently entered judgment in favor of HSBC.

Berman timely appealed.

DISCUSSION

A demurrer tests the legal sufficiency of the complaint. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) We review the complaint to determine whether it alleges facts sufficient to state a cause of action. (Ibid.) For purposes of review, we accept as true all material facts alleged in the complaint, but not the contentions, deductions or conclusions of fact or law. (Ibid.)

Oddly enough — given that he acknowledges the issue for us to decide is whether the complaint alleges facts sufficient to state a cause of action — in the page and one-half he devotes to argument in his opening brief, Berman does not address that issue at all. Instead, he argues that HSBC “never raised the issue of materiality in its demurrer, materiality was never briefed by the parties, yet the Court’s ruling was based on its sua sponte consideration of the issue of materiality.” He contends this was “clear error and grounds for reversal.” He further asserts that he alleged materiality in his complaint when he alleged that the denial letter was a material violation of subsection (d) of section 2923.6.

Not only does Berman’s argument fail to address the only issue that really matters — whether his complaint alleges facts sufficient to state a cause of action — his argument is based on an entirely erroneous premise — namely, that the trial court’s sustaining of HSBC’s demurrer “was based on its sua sponte consideration of the issue of materiality.” That is simply not the case. It is true the trial court noted that in his second amended complaint, Berman sought injunctive relief under section 2924.12, which allows for injunctive relief if there is a “material violation” of any of various statutes, including section 2923.6, but the conclusion the trial court drew relative to section 2924.12 was only that Berman had “not demonstrated a violation” of any of the statutes referenced in section 2924.12. Thus, the trial court was not concerned with and did not consider “materiality” and the trial court’s ruling sustaining HSBC’s demurrer was in no way “based” on any “consideration of the issue of materiality,” sua sponte or otherwise. Rather, the trial court’s ruling was based on its conclusion that Berman had not alleged any violation of section 2923.6.

As to that issue — whether Berman’s second amended complaint alleged facts constituting a violation of section 2923.6 and thus facts sufficient to state a cause of action for injunctive relief under section 2924.12 — Berman’s opening brief offers no argument. This omission would be sufficient for us to affirm the judgment against Berman because “[i]t is the appellant’s burden to demonstrate the existence of reversible error” (Del Real v. City of Riverside (2002) 95 Cal.App.4th 761, 766), and “`”[w]hen an appellant fails to raise a point, . . . we treat the point as waived.”‘ [Citation.] `We are not bound to develop [an] appellant[‘s] argument for [him]. [Citation.] The absence of cogent legal argument or citation to authority allows this court to treat the contention as waived’” (Cahill v. San Diego Gas & Electrical Co. (2011) 194 Cal.App.4th 939, 956). Nevertheless, despite Berman’s failure to address in his opening brief the dispositive issue of whether his second amended complaint alleges facts sufficient to state a cause of action, we will not treat that issue as waived because, between the parties’ arguments in the trial court, and the arguments exchanged between HSBC’s respondent’s brief and Berman’s reply brief, the dispositive issue here has been adequately addressed by both sides and is sufficiently framed and developed for us to decide.

Essentially, the competing positions are as follows:

Berman claims that by sending a denial letter that purported to give him only 15 days to file an appeal, HSBC committed a material violation of section 2923.6 because subdivision (f) of that section provides that such a denial letter must include “[t]he amount of time from the date of the denial letter in which the borrower may request an appeal” and subdivision (d) of that section specifies that “the borrower shall have at least 30 days from the date of the written denial to appeal the denial.” Berman essentially reasons that if a denial letter identifies as “[t]he amount of time from the date of the denial letter in which the borrower may request an appeal” a period of time that is less than the 30-day minimum the law requires, the denial letter violates section 2923.6 and is “ineffective,” and an injunction can issue under section 2924.12 to enjoin any trustee’s sale until that violation is corrected by the issuance of a new denial letter that sets forth a legally adequate period for appeal. Berman further contends that he “is under no obligation to file his Notice of Appeal to the denial of the loan modification until [HSBC] has provided a denial letter that fully complies in all material aspects with the mandates of” section 2923.6, because (due to the fact that the initial denial letter was “ineffective”) “[t]he mandated thirty day appeal period has not yet begun running and [HSBC] remains in control as to when that thirty day period will begin running.”

For its part, HSBC takes the position that it did not violate subdivision (f) of section 2923.6 because that subdivision requires only that the denial letter include “[t]he amount of time from the date of the denial letter in which the borrower may request an appeal,” and the denial letter here did so — even if the amount of time specified in the letter was less than the minimum amount of time allowed by subdivision (d) of section 2923.6. HSBC further argues that it did not violate section 2923.6 because it did not conduct a trustee’s sale within the 30-day appeal period provided by subdivision (d), which is prohibited by both subdivision (c) of the statute — which applies while a “complete first lien loan modification application is pending”[6] — and subdivision (e) of the statute — which applies once “the borrower’s application for a first lien loan modification is denied.”[7] And as for the minimum 30-day appeal period provided by subdivision (d) of section 2923.6, HSBC asserts only that: (1) the 15-day period included in its denial letter was “within the statutory appeal period”; and (2) Berman did not appeal in the 30-day statutory period in any event, or even within all of the time that has passed since the September 2014 denial letter (now more than two and one-half years).

We conclude Berman has the better argument. It is without dispute that section 2923.6 does two things that are relevant here: (1) it requires a lender like HSBC to advise the borrower in the denial letter how much time the borrower has to appeal; and (2) it requires the lender to give the borrower at least 30 days to appeal. Thus, to comply with the law, the denial letter must inform the borrower of an appeal period that is at least 30 days in length. HSBC’s denial letter did not do that. Instead, HSBC’s letter advised Berman he had only 15 days to appeal — merely half of the period allowed by law. Because the denial letter did not give Berman the full amount of time to appeal provided by the Legislature, his right to do so was effectively diminished as a result. We conclude this was a material violation of section 2923.6.

To the extent HSBC argues that Berman did not allege a violation of section 2923.6 because Berman did not allege that HSBC conducted a trustee’s sale within the 30-day appeal period provided by subdivision (d), that argument establishes only that Berman did not allege a violation of subdivisions (c) or (e) of section 2923.6. But there is more to the statute than those two subdivisions, and when subdivisions (d) and (f) are considered, it is apparent (as we have concluded) that Berman did allege a violation of section 2923.6.

To the extent HSBC asserts the 15-day appeal period included in its denial letter was “within the statutory appeal period,” that assertion is nonsensical. Subdivision (d) of section 2923.6 requires an appeal period of “at least” 30 days. That means 30 days or more. Thus, an appeal period of only 15 days is not within the statutory appeal period.

To the extent HSBC contends Berman did not appeal within the 30-day statutory period in any event, or even in all of the time that has passed since the September 2014 denial letter (now more than two and one-half years), and thus “has not been prejudiced in any manner,” that contention does not carry the day either. We have concluded already that a denial letter that purports to give a borrower only 15 days to appeal the denial is a material violation of section 2923.6. Subdivision (a) of section 2924.12 provides that “[i]f a trustee’s deed upon sale has not been recorded, a borrower may bring an action for injunctive relief to enjoin a material violation of Section . . . 2923.6” and “[a]ny injunction shall remain in place and any trustee’s sale shall be enjoined until the court determines that the mortgage servicer, mortgagee, trustee, beneficiary, or authorized agent has corrected and remedied the violation or violations giving rise to the action for injunctive relief.” Thus, it does not matter, for purposes of Berman’s request for injunctive relief under section 2924.12, that he has not yet filed an appeal from the September 2014 denial of his application for a loan modification. If Berman proves up the allegations in his second amended complaint, then the denial letter was a material violation of section 2923.6, and section 2924.12 will give Berman the right to an injunction against a trustee’s sale that will remain in place until the court determines that HSBC has corrected and remedied the violation — which HSBC can do by issuing an amended denial letter that properly notifies Berman that he has a period of no less than 30 days to appeal the denial.[8] Nothing in the statutory scheme denies Berman the right to this relief because he did not file an appeal sooner, before the issuance of the amended denial letter. Thus, his failure to file an appeal is, at least for now, of no moment.

Turning to HSBC’s remaining arguments in support of affirming the trial court’s judgment, we find no merit in any of them. HSBC first contends that because Berman’s order to show cause for a preliminary injunction was denied and the previously issued temporary restraining order was dissolved in May 2015, Berman “was already formally denied the only relief he even could have obtained in this matter.” This argument lacks merit for several reasons. First, HSBC fails to point out that the denial of the order to show cause for a preliminary injunction was without prejudice. Second, HSBC fails to point out that the denial was without prejudice because there was no proof of service of the temporary restraining order or the order to show cause as required by the temporary restraining order itself. Third, HSBC fails to provide any authority for the suggestion that the denial of a preliminary injunction on whatever grounds precludes Berman from seeking a permanent injunction. Thus, HSBC has altogether failed to show that the denial of preliminary injunctive relief has any bearing on the merits of Berman’s complaint.

HSBC next contends that Berman’s complaint “fails as it is based on a purportedly defective denial letter in regards to a loan modification.” In HSBC’s view, because the statutory scheme did not guarantee Berman a modification of his loan (see § 2923.4, subd. (a) [“Nothing in the act that added this section . . . shall be interpreted to require a particular result of [the loan modification] process”]), he “cannot allege any harm, or subsequent violation of statute, for having his modification application denied.” This argument also lacks merit. Berman’s complaint does not allege harm from the denial of his application for a loan modification, nor is there any reason for it to. All he is seeking is the injunctive relief section 2924.12 allows to correct a material violation of section 2923.6. His right to such relief is not dependent on whether he is ultimately entitled to a loan modification. While he has no right to a modification, he does have a right to appeal the denial and the 15-day letter effectively cut off that right prematurely. Thus, the fact that he has no statutory right to a modification is entirely irrelevant here.

HSBC next contends Berman’s complaint lacks merit because “by his own concession . . . he was previously offered a . . . loan modification, which he failed to complete.” According to HSBC, the third page of the denial letter, which Berman attached as an exhibit to his first amended complaint, “states on its face . . . that he was denied for a . . . modification because [he] `did not successfully complete a previous Home Affordable Modification Program (HAMP) offer.’” HSBC argues that under subdivision (g) of section 2923.6, it was not obligated to evaluate Berman’s loan modification application because of his failure to complete the previous HAMP offer. HSBC also contends that subdivision (c) of section 2923.6 precludes the recording of a notice of default or notice of sale or conduct of a trustee’s sale only until the borrower defaults on or otherwise breaches his or her obligations under a loan modification.

Again, HSBC’s arguments are without merit. Subdivision (c) of section 2923.6 is not at issue here. Even assuming that Berman failed to complete a previous modification offer, that has no bearing on whether he is entitled to injunctive relief because HSBC’s failure to provide the full 30-day period to appeal the denial of a subsequent offer was a material violation of subdivisions (d) and (f) of that statute. As for HSBC’s reliance on subdivision (g) of section 2923.6, there are two problems. First, HSBC fails to explain how the fact that it may not have been obligated to evaluate Berman for a second loan modification excuses its material violation of the statute when it nonetheless decided to evaluate him for a second modification. Second, and more important, HSBC fails to explain why, on review of HSBC’s demurrer, we must accept as true a statement of purported fact contained in the denial letter that Berman attached to his complaint. Berman did not attach the letter to his complaint as proof of that purported fact (i.e., that he failed to complete a previous modification offer); he attached it to evidence HSBC’s unlawful provision of only a 15-day appeal period. In the absence of any authority from HSBC that we are bound to treat as true an assertion of fact that Berman did not allege in his complaint, just because that assertion was made in an exhibit Berman appended to his complaint for another reason altogether, we must reject HSBC’s argument based on that factual assertion.

Finally, HSBC contends that Berman has “concede[d] that this meritless action is nothing more than a delay tactic.” By this, HSBC appears to be referring to the fact that Berman is pursuing this action to force HSBC to issue an amended denial letter, and the suggestion that Berman may not even intend to take an appeal from the denial letter after all. Be that as it may, it has no bearing on Berman’s right to relief. As we have explained, section 2924.12 provides for an injunction to stop a trustee’s sale until the court has determined that a material violation of section 2923.6 has been corrected. Any delay in HSBC’s ability to sell Berman’s property at such a sale is the result of the relief the statute provides, HSBC’s failure to acknowledge its error in purporting to give Berman only 15 days to appeal the denial of his application for a loan modification, and HSBC’s stubborn refusal to correct that error in the intervening two and one-half years. In the end, what matters for our purposes is that Berman’s second amended complaint alleged facts sufficient to state a cause of action for injunctive relief. Thus, we must conclude that the trial court erred in sustaining HSBC’s demurrer.

DISPOSITION

The judgment is reversed, and the case is remanded to the trial court with instructions to vacate its order sustaining HSBC’s demurrer and to enter a new and different order denying the demurrer. Berman shall recover his costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1).)

Murray, J. and Hoch, J., concurs.

[1] All further section references are to the Civil Code.

[2] The letter stated in pertinent part as follows: “You have the right to appeal our decline decision regarding the Homeowners Assistance Program. If you would like to appeal, you must contact us in writing at the address provided below by 10/02/2014 and state that you are requesting an appeal of our decision. . . . You may also specify the reasons for your appeal, and provide any supporting documentation. Your right to appeal expires 10/02/2014. Any appeal requests or documentation received after 10/02/2014 may not be considered.”

[3] As relevant here, subdivision (f)(1) of section 2923.6 provides that “[f]ollowing the denial of a first lien loan modification application, the mortgage servicer shall send a written notice to the borrower identifying the reasons for denial, including the following: [¶] (1) The amount of time from the date of the denial letter in which the borrower may request an appeal of the denial of the first lien loan modification and instructions regarding how to appeal the denial.”

[4] Subdivision (e) of section 2923.6 provides as follows: “If the borrower’s application for a first lien loan modification is denied, the mortgage servicer, mortgagee, trustee, beneficiary, or authorized agent shall not record a notice of default or, if a notice of default has already been recorded, record a notice of sale or conduct a trustee’s sale until the later of: [¶] (1) Thirty-one days after the borrower is notified in writing of the denial. [¶] (2) If the borrower appeals the denial pursuant to subdivision (d), the later of 15 days after the denial of the appeal or 14 days after a first lien loan modification is offered after appeal but declined by the borrower, or, if a first lien loan modification is offered and accepted after appeal, the date on which the borrower fails to timely submit the first payment or otherwise breaches the terms of the offer.”

[5] As relevant here, subdivision (a) of section 2924.12 provides as follows: “(a)(1) If a trustee’s deed upon sale has not been recorded, a borrower may bring an action for injunctive relief to enjoin a material violation of Section . . . 2923.6. [¶] (2) Any injunction shall remain in place and any trustee’s sale shall be enjoined until the court determines that the mortgage servicer, mortgagee, trustee, beneficiary, or authorized agent has corrected and remedied the violation or violations giving rise to the action for injunctive relief. An enjoined entity may move to dissolve an injunction based on a showing that the material violation has been corrected and remedied.”

[6] As relevant here, subdivision (c) of section 2923.6 provides as follows: “If a borrower submits a complete application for a first lien loan modification offered by, or through, the borrower’s mortgage servicer, a mortgage servicer, mortgagee, trustee, beneficiary, or authorized agent shall not record a notice of default or notice of sale, or conduct a trustee’s sale, while the complete first lien loan modification application is pending. A mortgage servicer, mortgagee, trustee, beneficiary, or authorized agent shall not record a notice of default or notice of sale or conduct a trustee’s sale until any of the following occurs: [¶] (1) The mortgage servicer makes a written determination that the borrower is not eligible for a first lien loan modification, and any appeal period pursuant to subdivision (d) has expired.”

[7] See footnote 4, ante, for the text of subdivision (e) of section 2923.6.

[8] Indeed, we note, there appears to be no reason why HSBC could not have issued such an amended letter at any time in the last two and one-half years and thus brought an end to the present action.

Here is a link for you to download a PDF of the Appeal – C081487-1

 

 

* * * * * * * * * *

I welcome those reading my story. I appreciate all of the emails I have been receiving. I also appreciate those who have registered and subscribe to this blog. If you have come from Facebook please comment on this site, rather than any Facebook post of this page due to the fact that there are many readers who are not part of Facebook forums, or even Facebook itself. I encourage all readers to put their comments on this site so that all of the information will be accessible to all readers from all parts of the internet. I urge you to join this site and receive the RSS feed, or bookmarking us, sharing us with your friends on Facebook and Twitter. If you know of anyone who might benefit from this information I urge you to pass on this website address! Share and let’s make some change together!

Thank you for stopping by.

SiteLock

©2014-2017 Doug Boggs All Rights Reserved