Filed 6/26/13 Didak v. Merrill Lynch Mortgage Investors CA2/7 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

MARK F. DIDAK et al.,
Plaintiffs and Appellants,

v.

MERRILL LYNCH MORTGAGE INVESTORS, INC. et al.,
Defendants and Respondents. B240704
(Los Angeles County Super. Ct. No. SC114327)
ORDER MODIFYING OPINION; NO CHANGE IN JUDGMENT

THE COURT: It is ordered that the opinion filed here in on June 12, 2013, and not certified for publication, be modified as follows: 1. On page 7, footnote 5, lines 9-10 read as follows: “(See former Civ. Code, §§ 2924 et seq [a mended by Stats. 2012, c. 86 (A.B. 278), § 5].)” It should read: “(See Civ. Code, § 2944.)” Appellant’s petition for rehearing is deni ed. The foregoing do es not change the judgment.

WOODS, Acting P. J. ZELON, J. SEGAL, J. (Assigned)Filed 6/12/13 (unmodified version) NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

MARK F. DIDAK et al.,
Plaintiffs and Appellants,

v.

MERRILL LYNCH MORTGAGE INVESTORS, INC. et al.,
Defendants and Respondents. B240704
(Los Angeles County Super. Ct. No. SC114327)

APPEAL from a judgment of the Superior Court of Los Angeles County, Cesar C. Sarmiento, Judge. Affirmed.
Law Office of Mark F. Di dak and Mark F. Didak for Plaintiffs and Appellants. Wolfe & Wyman, Stuart B. Wolfe a nd Cathy L. Granger for Defendants and Respondents Merrill Lynch Mortgage Investor s, Inc., HSBC Bank, US A, as Trustee of the Merrill Lynch Mortgage Investors Series 2006-AF2 , Merrill Lynch Mortgage Lending, Inc., Citimortgage, Inc., individua lly and as successor by merger to ABN Amro Mortgage Group, Inc. and Wells Fargo Bank. Wright, Finlay & Zak, Charles C. Mc Kenna and Peter Watson for Defendant and Respondent Cal-Western Rec onveyance Corporation. Arbogast Bowen and Davi d M. Arbogast; Howard La w and Vincent Howard for Amicus Curiae Consumer Attorneys of Californi a in support of Plain tiffs and Appellants.2 Appellants Mark and Anna Di dak appeal from the judgment entered upon the trial court’s order sustaining respondents’ demurrer without leave to amend. On October 13, 2011, appellants filed a Fi rst Amended Complaint (“FA C”) against Merrill Lynch Mortgage Investors, Inc. (“MLMI”), HS BC Bank, USA, N.A. (“HSBC”), Merrill Lynch Investors Trust, purportedly a real estate mortgage in vestment conduit (“REMIC”), Merrill Lynch Mortgage Lending, Inc. (“ML ML”), Citimortgage, Inc. (“Citi”), Wells Fargo Bank, N.A., Stewart Title of Califor nia, Inc., and Cal-Western Reconveyance Corporation (collectively, “respondents”). Appellants’ FAC alleged claims for fraud, quiet title, cancellation of deed of trust, decl aratory relief, and wrongful credit reporting. Appellants also sought a temporary restra ining order, a temporary injunction, and a permanent injunction ag ainst respondents. Here appellants argue that respondents l ack authority to service their mortgage. 1 Primarily, appellants allege res pondents never received legal title to their mortgage due to a failed securitization of the mortgage un der the governing p ooling and servicing agreement (“PSA”). For the reasons set forth below, the trial court’s order sustaining respondents’ demurrer without leave to amend is affirmed.

FACTUAL AND PROCEDURAL BACKGROUND 2 On April 19, 2006, appellant s executed a mortgage in favor of First Capital Mortgage on their condominiu m in Culver City, California. On June 1, 2006, First Capital sold appellants’ mortgage to ABN Amro Mortgage Group, Inc. (“ABN”) . According to appellants, ABN later sold the mortgage to an unidentified entity.

1 Although in California promissory no tes are secured by deeds of trust not mortgages, we use the term “mortgage” here for ease of reference. There is little practical difference between mortgages and deeds of trust. “[T]hey perform the same basic function, and [ ] a deed of trust is ‘p ractically and substantially only a mortgage with power of sale.’” ( Domarad v. Fisher & Burke, Inc. (1969) 270 Cal.App.2d 543, 553.)

2 The facts are taken from appellants’ FAC. (See Howard Jarvis Ta xpayers Assn. v. City of La Habra (2001) 25 Cal.4th 809, 814 [we a ssume the truth of the plaintiffs’ pleaded facts when reviewing a judgment of dismissal following a sustained demurrer].)3 Following ABN’s assignment of appellants’ mortgage to the un identified entity, Citi acquired ABN through a merger. Appellants’ challenge primarily relies, how ever, on another purported transfer of appellants’ mortgage in 2006. During th at year, MLMI, MLML, and HSBC purportedly created a real estate mortgage investment conduit (“REMIC”) pursuant to a pooling and servicing agreement (“PSA”). Respondents have claimed legal title to appellants’ mortgage since 2006, citing transfer of the mortgage to the REMIC pursuant to the terms of the PSA. Since that time, Citi has repr esented itself as the authorized servicer for appellants’ loan. Since the purported creati on of the REMIC in 2006, Citi has collected more than $147,000 in monthly mo rtgage payments from appellants. In March, 2011, appellants stopped making their monthly mortgage payments to

Citi. 3 Soon after, Citi engage d in numerous written and oral communications with appellants, in which Citi sought to collect further mortgage payments from appellants. Appellants refused to make further paymen ts until Citi proved ownership of their mortgage. As a result, Citi retained Cal-West ern to serve as its ag ent for the potential foreclosure on appellants’ condominium. Aro und July 12, 2 011, Cal-Western recorded a notice of default on appellant s’ mortgage and initiated foreclosure proceedings. According to appellants, respondents neve r obtained authority to service their mortgage due to a failed securitization of th e mortgage under the terms of the PSA. Alternatively, appellants allege respondents never obtained authority to service their mortgage because ABN aliened its interest in appellants’ mortgage prior to ABN’s merger with Citi, when it a ssigned the mortgage to an un identified entity. Therefore, appellants allege that Citi never obtained aut hority to collect payments on their mortgage
or foreclose on their home.

3 Appellants have not claimed that they have continued making mortgage payments to any other entity.4 Based on these allegations, appellants filed a complaint alleging the following causes of action: (1) fraud, (2) quiet title, (3) can cellation of deed of trust, (4) declaratory relief, (5) wrongful credit reporti ng, and (6) injunctive relief. Respondents filed a demurrer to appellants’ FAC. In support of their demurrer, respondents argued that appellants: (1) lacked standing to challenge the validity of the assignment of their mortgage under the PSA; (2 ) failed to plead sufficient facts to support a fraud cause of action; and (3) failed to tende r the remainder of th eir loan obligation, thereby barring a claim for quiet title. In rega rd to appellants’ other claims, respondents argued that appellants failed to plead suffici ent facts to show that respondents never received legal title to appellants’ mortgage . The trial court sustained the demurrer
without leave to amend. This appeal followed.

DISCUSSION
I. Standard of Review This court applies a de novo standard of review to a trial court’s order of dismissal following an order sustaining a demurrer. ( Los Altos El Granada Investors v. City of Capitola (2006) 139 Cal.App.4th 629, 650.) In other words, this court exercises its “independent judgment about whether the compla int states a cause of action as a matter of law.” ( Ibid. ) “In reviewing a judgment of dism issal after a demurrer is sustained without leave to amend, we must assume th e truth of all facts properly pleaded by the plaintiffs, as well as those that are judicially noticeable.” ( Howard Jarvis Taxpayers Assn. v. City of La Habra
, supra , 25 Cal.4th at p. 814.) “A judgment of dismissal after a
demurrer has been sustained without leave to amend will be affirm ed if proper on any grounds stated in the demurrer, whether or not the court acted on that ground.” ( Carman
v. Alvord (1982) 31 Cal.3d 318, 324.)
When a demurrer “is sustained without leave to amend, we decide whether there is a reasonable possibility that the defect can be cured by amendment: if it can be, the trial
court has abused its discretion and we reve rse; if not, there has been no abuse of discretion and we affirm.” ( Blank v. Kirwan (1985) 39 Cal.3d 31 1, 318.) Such a5 showing can be made for the first ti me before the reviewing court. ( Smith v. State Farm
Mutual Automobile Ins. Co. (2001) 93 Cal.App.4th 700, 71 1.) “The burden of proving such reasonable possibility is squarely on the plaintiff.” ( Blank v. Kirwan
, supra , 39 Cal.3d at p. 318.)
II. Applicable Law The California Supreme Court has not ad dressed the issue of whether a borrower has standing to challenge the securitization of his or her mortgage under a PSA in a published opinion. Recently Division Three of the Fourth District Court of Appeal, in
dicta noted that: “As an unrelated third party to the alleged securitization, and any other subsequent transfers of the beneficial intere st under the promissory note, [the plaintiff homeowner] lacks standing to enforce any agreements, including the investment trust’s pooling and servicing agreement, rela ting to such transactions. (See In re Correia (Bankr.1st Cir.2011) 452 B.R. 319 , 324-325 [debtors lacked st anding to raise violations of pooling and service agreement].)” ( Jenkins v. JP Morgan Chase Bank, N.A. (2013) 216 Cal.App.4th 497, ___, 2013 WL 2145098, at *9.) The court in Jenkins also cited the appellant’s lack of standing as a reason for a ffirming the trial court’s decision to deny her an opportunity to ame nd her complaint. ( Id. at *10.) Notwithstanding a dearth of case law fro m California state courts on the matter, there are a number of federal opinions addre ssing this issue under California law. The overwhelming majority of these cases hold th at borrowers lack standing to challenge whether their mortgages were properly securiti zed under the terms of the applicable PSAs when those borrowers were neither parties to, nor third-party beneficiaries of, the PSAs. (See Sami v. Wells Fargo Bank (N.D. Cal., Mar. 21, 2012, C 12-00108 DM R) 2012 WL 967051, at *6 [“To the extent Plaintiff base s her claims on the theo ry that Wells Fargo allegedly failed to comply w ith the terms of the PSA, the court finds that she lacks standing to do so because she is neither a party to, nor a th ird party beneficiary of, that agreement”]; Junger v. Bank of America, N.A. (C.D. Cal., Feb. 24, 2012, CV 11-10419 CAS VBKX) 2012 WL 603262, at *3 [“The Cour t finds that plaintiff lacks standing to challenge the process by which his mortgage was (or was not) securitized because he is6 not a party to the PSA”]; Almutarreb v. Bank of New York Trust Co., N.A. (N.D. Cal., Sept. 24, 2012, C-12-3061 EM C) 2012 WL 4371410, at *2; Deerinck v. Heritage Plaza Mortg. Inc. (E.D. Cal., Mar. 30, 2012, 2:11-CV-0 1735-MCE) 2012 WL 1085520, at *5; Ramirez v. Kings Mortg. Services, Inc. (E.D. Cal., Nov. 8, 2012, 1:12-CV-01109-AWI)
2012 WL 5464359, at *5.) 4 Additionally, federal courts throughou t the country have reached similar conclusions when applying other stat es’ nonjudicial foreclosure laws. ( In re Correia (B.A.P. 1st Cir. 2011) 452 B.R. 319; In re Smoak (Bankr. S.D. Ohio 2011) 461 B.R. 510;
In re Veal (B.A.P. 9th Cir. 2 011) 450 B.R. 897; In re Walker (Bankr. E.D. Pa. 2012) 466 B.R. 271; In re Washington (Bankr. W.D. Pa. 2012) 469 B. R. 587.) Although one federal case applying California law held that a bo rrower was entitled to challenge defendants’ authority to foreclose on their property base d on an alleged viola tion of the governing PSA, that case involved a “unique set of facts” that are not present here. (See Wise v. Wells Fargo Bank, N.A. (C.D. Cal. 2012) 850 F.Supp. 2d 1047, 1052; see also McGough v. Wells Fargo Bank, N.A. (N.D. Cal., June 18, 2012, C12-0050 TEH) 2012 WL 2277931 [distinguishing Wise from the typical securitization ch allenges because the FAC in that case alleged a “fairly unique set of facts,” in volving timely loan payments, a denial of a loan modification request, and fabricated loan documents].)

4 “Although we may not rely on unpublis hed California cases, the California Rules of Court do not prohibit citation to unpublis hed federal cases, which may properly be cited as persuasive, although not binding, authority.” ( Gomes v. Countrywide Home Loans, Inc. (2011) 192 Cal.App.4t h 1149, 1155, fn. 6.)7 A. Appellants Failed To Establish that Respondents Lack Authority to Service Their Mortgage 5 In their FAC, appellants alle ge “[a] recent investigati on into the chain of title to [appellants’] loan establishes that legal owne rship of the loan was never transferred to HSBC in its capacity as trustee for MLMI REMI C, or in any other capacity, as required by (a) the Pooling and Service Agreement . . . and/or (b) New York law, which governs
the PSA . . . .” (Emphasis added.) Thus, appella nts primarily rely on an alleged violation of the PSA to argue that respondents lack authority to collect payments on appellants’ mortgage. As discussed above, this argument has been consistently rejected by federal courts interpreting California’s nonjudic ial foreclosure statutory scheme. (See Sami , supra , 2012 WL 967051, at *6.) In their briefs on appeal, appellants a ttempt to sidestep the standing issue by asserting that they “are not suing to attack or enforce the PSA, or to attack the securitization of their mortgage.” Rather, ap pellants claim that the failed securitization is simply “evidence” that respondents never receiv ed legal title to their mortgage. This is essentially the same argument. Regardless of how framed or labeled all of their claims depend on the same contention – the mortga ge was improperly securitized under the PSA. As nearly every court addressing this issue in a pub lished opinion has recognized, borrowers who are not a party to, or a third pa rty beneficiary of, the PSA lack standing to allege a failed transfer due to improper securitization. ( Junger v. Bank of America N.A. ,

5 Both parties devote discussion in their br iefs to the issue of whether Article 3 of the California Commercial Code governs ap pellants’ mortgage. As the court in Gomes v. Countrywide Home Loans, Inc., supra, 192 Cal.App.4th 1149, recognized, California courts have refused to read additional requir ements into California’s statutory nonjudicial foreclosure scheme, which is codified in the Civil Code. ( Id. at p. 1154.) Because respondents recorded a notice of default in 2011, and appear to have initiated foreclosure proceedings, the Civil Code governs appellant s’ mortgage. (See former Civ. Code, § 2923.5 [amended by Stats. 2012, c. 86 (A.B. 2 78), § 5].) The sections of the Civil Code governing nonjudicial foreclosures do not re fer to the California Commercial Code. (See former Civ. Code, §§ 2924 et seq [amended by Stats. 2012, c. 86 (A.B. 278), § 5].) Therefore, Article 3 does not govern a ppellants’ mortgage in this case.8 supra , 2012 WL 603262, at *3; see also Rodenhurst v. Bank of America (D. Hawaii 2011) 773 F.Supp.2d 866, 899 [“The overwhelming authority does not support a cause of action based upon improper securitization”].) As far as appellants’ causes of action rely on the allegation that respondents violated th e terms of the PSA, the trial court properly sustained respondents’ demurrer on the ground th at appellants lack standing to challenge the securitization of their mortgage. Appellants make a second attempt to sidest ep the standing hurdle by alleging that ABN aliened its interest in appellants’ mort gage prior to ABN’s merger with Citi. Appellants are allowed to show for the first time before this Court that there is a reasonable possibility any defect in their plea dings can be cured by amendment. (See
Smith v. State Farm Mut ual Automobile Ins. Co.
, supra , 93 Cal.App.4th at p. 711.) However, they have failed to do so. Wh en the matter was addressed at oral argument, appellants did not articulate a plausi ble theory of liability independent of any purported breach of the PSA. Likewise the appellate brie fs do not offer a plausible alternative basis of liability. Appellants copi ed Paragraph 11 of th eir FAC and pasted it into their opening and reply briefs on app eal. Paragraph 11 alleges that “ABN Amro aliened any right, title or interest in plaintiffs ’ loan by selling it in 2006 . . . to an entity whose identity is currently unk nown.” Notwithstanding the allegation that some other entity owns the loan, 6 appellants have not alleged that any entity, other than Citi, has made any attempts to collect mortgage payments from them since the purported transaction in 2006. (See Bernardi v. JPMorgan Chase Bank, N.A. (N.D. Cal., Jan. 6, 2012, C-11-04543 RMW) 2012 WL 33894, at *2 [“Nor do plaintiffs allege that any third party has ever come forward attempting to en force the debt, making plaintiffs’ claim yet more implausible”].) The failure to allege that any other entity has made efforts to collect on the note undermines any claim that the note was transferred prior to the time that Citi acquired ABN or that another entity other than REMIC owns appellants’ mortgage.

6 Appellants do not dispute that they owe money on the mortgage obligation; they have not alleged that they have paid th e outstanding balance owed on the note.9 Appellants’ allegations are insufficient to support appellants’ claims that respondents lack authority to service their loan. In Javaheri v. JPMorgan Chase Bank,
N.A. (C.D. Cal., Mar. 24, 2011 , CV 10-08185 ODW FFMX) 2011 WL 1131518, an unpublished district court case cited by appella nts, the court recognized that an allegation very similar to the one in th e instant case was insufficiently pled because it could “only be characterized as a ‘legal conclusion couche d as a factual allegati on’ which the Court is not bound to accept.” ( Id. at *2, quoting Bell Atlantic Corp. v. Twombly (2007) 550 U.S. 544, 546 [127 S.Ct. 1955, 1959-6 0, 167 L.Ed.sd 929].) So to o here, appellants attempt to couch a legal conclusion – that respondents never obtained lega l title to their loan – as a factual allegation – that ABN transferred appe llants’ mortgage to an unidentified entity. Thus, appellants have failed to plead facts sufficient to show respondents are not
authorized to service their loan and have failed to demonstrate a reasonable possibility they could cure the defects in their pleading if afforded the opportunity to amend. B. Appellants Failed to Plead Sufficien t Facts to Support Their Causes of Action Against Respondents As discussed above, appellants’ primary contention relies on the allegation that respondents never received legal title to appella nts’ mortgage due to a purported violation of the PSA. Appellants argue their mortgage was improperly securitized as required by the PSA, and as a result, Citi lacks aut hority to service appellants’ mortgage. Alternatively, appellants allege that notwith standing the purported violation of the PSA, respondents never received lega l title to appellants’ mortgage due to a sale of the mortgage to an unidentified entity in 2 006, prior to the cr eation the REMIC. Relying on these allegations, appellants seek to quiet title to th eir home, cancel the first deed of trust on their home, collect m onetary damages for fraud and wrongful credit reporting, obtain a temporary restraini ng order against resp ondents, and obtain preliminary and permanent injunctions agains t respondents. For the reasons set forth below, appellants have failed to set forth fact s sufficient to support their claims against respondents.10 1. Fraud Cause of Action Appellants base their fraud cause of ac tion on respondents’ “express and oral representations that it is the au thorized servicer on plaintiffs ’ loan.” As discussed above, appellants rely on the purporte d violation of the PSA to c ontend that respondents lack authority to service their loan. As far as appellants’ fraud claim is based on the purported violation of the PSA, the claim fails becaus e appellants lack standing to challenge the
securitization of their mort gage under the PSA. (See Sami , supra , 2012 WL 967051, at *6.) Therefore, because appellants lack standi ng to challenge the securitization of their mortgage under the PSA, the court properly sustained the demurrer to the fraud claim without leave to amend. (See Tarmann , supra , 2 Cal.App.4th at pp. 157-158.)
2. Quiet Title Cause of Action In their second cause of action, appellant s seek to quiet title to their property securing the mortgage at issue. To state a cause of action for quiet title, a plaintiff must plead: (1) a legal description of the property th at is the subject of the action; (2) the title of the plaintiff and the basis upon which such title is asserted ; (3) the adverse claims to the title of the plaintiff against which a determ ination is sought; (4) the date as of which the determination is sought; and (5) a prayer for the determination of the plaintiff against the adverse claims. (Code Civ. Proc., § 761.020.) Aside from adequately pleading the statutory elements, “[i]t is settled in California that a mortgagor cannot quiet his title against the mortgag ee without paying the debt secured.” ( Shimpones v. Stickney (1934) 219 Cal. 637, 649; see also Horton v. Cal. Credit Corp. Ret. Plan (S.D. Cal. 2011) 835 F.Supp.2d 87 9, 893 [“even if [Code Civ. Proc., § 761.020] requirements are met, Californi a courts have pronounced that in order to maintain a cause of action to quiet title, the mortgagor must alle ge tender or ability to tender the amounts admittedly bo rrowed”].) “This rule is based upon the equitable principle that he who seeks equity must do eq uity . . . a court of equity will not aid a person in avoiding the payment of his or her debts.” ( Mix v. Sodd (1981) 126 Cal.App.3d 386, 390.)11 Here, appellants admit they have paid only $147,000 on their mortgage. They have not alleged that they have paid off the remainder of their debt, and they have made
no offer to tender the remainder of their debt . Therefore, appellants cannot maintain a quiet title action. (See Shimpones
, supra , 219 Cal. at p. 649 [“[A] mortgager cannot quiet his title against the mortgagee without pa ying the debt secured”]; see also Lane v. Vitek Real Estate Industries Group (E.D. Cal. 2010) 713 F.Supp.2d 1092, 1103 [“As plaintiffs concede they have not paid the debt secured by the mortgage, they cannot sustain a quiet title action against defendants”].) For the reasons stated above, the trial c ourt properly sustained the demurrer to the quiet title action without leave to amend.
3. Cancellation of Deed of Trust Cause of Action In their third cause of action, appellants se ek to cancel the de ed of trust securing their mortgage. Civil Code section 3412 stat es, “[a] written instrument, in respect to which there is a reasonable apprehension that if left outstanding it may cause serious injury to a person against whom it is void or voidable, may, upon his application, be so adjudged, and ordered to be delivered up or canceled.” In their FAC, appellants allege that th eir deed of trust was transferred to respondents without the accompa nying note, and “[b]ecau se plaintiff’s [deed of trust] was transferred without the note, the [deed of trust] must be can celed and declared void, with full reconveyance to plaintiffs.” They have failed, however, to allege how this purported transaction (i.e., the transfer of the deed without the note) w ill result in serious injury if
the deed of trust is not cancelled. (See Civ. Code § 3412; see also Malfatti v. Mortgage Electronic Registration Systems, Inc. (N.D. Cal., Nov. 29, 2011 , C 11-03142 WHA)
2011 WL 5975055 [granting dismissal on cancellation ac tion when plaintiffs alleged only an improper recording of their mortgage an d set forth no explanation for how such improper recording would resu lt in serious injury].) In addition, appellants have not allege d that they have paid the outstanding balance owed on the note; they acknowledge that they have paid only a fraction of their obligation on their mortgage. As a result, so me entity has an inte rest in receiving the12 remainder of the obligation on appellants’ mort gage. Therefore, even if appellants’ note was never properly assigned to respondents as they allege, there are other parties who have an interest in receiving the remainder of the obligation. (See Mata v. Citimortgage,
Inc. (C.D. Cal., Sept. 26, 2011, CV 10- 9167 DSF PLAX) 2011 WL 4542723, at *3 [“Plaintiffs also ask for a declaration that the improper assignment extinguished various rights held under the note or deed of trust or that Plaintiffs . . . otherwise do not owe money on their note(s) . . . . If Plaintiffs ’ note was never assigned to Citimortgage or BofA, then there are other partie s . . . who have an interest in those issues”].) Thus, any improper assignment to Citi woul d not serve to extinguish the rights and interests that others may have in the property. Cons equently, the remedy appellants’ seek—“full reconveyance” would not be viable. For the reasons stated above, the trial c ourt properly sustained the demurrer to the
cancellation action withou t leave to amend.
4. Declaratory Relief Cause of Action In their fourth cause of action, appellants seek a judicial decl aration that no party other than appellants has any right, title or inte rest in appellants’ lo an, property, and deed
of trust. Under Code of Civil Procedure section 1060, “[a]ny person . . . who desires a declaration of his or her rights or duties with respect to another, or in respect to, in, over or upon property . . . may, in cases of actual controversy relati ng the legal rights and duties of the respective parties, bring an original action . . . fo r a declaration of his or her rights . . . .” Appellants base their declaratory relief cl aim on allegations that respondents never received legal title to their mortgage. Because appellants have failed to adequately plead that respondents never received legal title to their mortgage, their declaratory relief claim fails for the reasons set forth above. (See Sami , supra , 2012 WL 967051, *8.) Appellants’ declaratory relief claim fails for another reason as well. Appellants seek a declaration that respondents have no right to initiate or maintain foreclosure proceedings against appellants’ property and that such proc eedings must immediately be terminated. As the Fourth District recognized in Gomes , “‘California appellate courts13 have refused to read any additional require ments into the non-judicial foreclosure statute.’” ( Gomes v. Countrywide Home Loans, Inc., supra, 192 Cal.App.4th at p. 1154.) This is so because California’s nonj udicial foreclosure scheme provides “a comprehensive framework for the regulation of a nonjudicial foreclosure sale pursuant to a power of sale contained in a deed of trust.” ( Ibid. ) “‘These provisions cover every aspect of exercise of the power of sale contained in a deed of trust.’” ( Ibid. ) Here, appellants essentially seek a declar ation that respondents lack the authority to foreclose on their property. Prior to th e enactment of the Homeowner Bill of Rights (HBR) and the accompanying am endments to California’ s statutory nonjudicial foreclosure scheme there was nothing in the sc heme that authorized a plaintiff to seek declaratory relief establishing whether a defe ndant has the right to foreclose. (See Gomes v. Countrywide Home Loans, Inc.
, supra , 192 Cal.App.4th at p. 1154; see also Ramirez , supra , 2012 WL 54643 59, at *10.) Therefore, b ecause California’s nonjudicial foreclosure scheme must be applied as it ex isted at the time respondents recorded the notice of default in 2011, appellants cannot seek a declaration that respondents lack authority to service their mortgage. (See Myers v. Philip Morris Companies, Inc. (2002) 28 Cal.4th 828, 841; see also McGough v. Wells Fargo Bank, N.A. (N.D. Cal., Oct. 22, 2012, C12-0050 TEH) 2012 WL 5199411, at *5 (fn.4) [“[The HBR] amendments do not go into effect until Jan. 1, 2013 and there is no indication that the law is intended to be, or will be, applied retroactively” ].) Therefore, the trial court properly sustained the demurrer to the declaratory relief claim.
5. Wrongful Credit Reporting Cause of Action In their fifth cause of action, appellant s allege that respondents breached Civil Code section 1785.25, subdivision (a), when they reported to co nsumer credit reporting agencies that appellants “wer e delinquent on their mortgage payments . . . when they knew or reasonably should have known that [appe llants] were not delinquent . . . .” Civil Code section 1785.25, subdivision (a), provide s: “A person shall not furnish information on a specific transaction or experience to a ny consumer credit reporting agency if the person knows or should know the information is incomplete or inaccurate.” In alleging a14 violation of Civil Code section 1785.25, su bdivision (a), appellants contend respondents “knew or reasonably should have known that plaintiffs were not delinquent because plaintiffs had and have no obligation to make payments on their loan to these [respondents] . . . .” As discussed above, appellants have failed to adequately allege respondents never received legal title to their mortgage. Furthe r, appellants have failed to show that they have continued making regular mortgage payments to any entity. As a result, appellants
have caused their own delin quency in the mortgage payment process. (See Javaheri v. JPMorgan Chase Bank, N.A. (C.D. Cal., Aug. 13, 2012, 2:10-CV-08185-ODW) 2012 WL 3426278, at *6 [court recognizes that any injury suffered by the plaintiff was the result of his default on the mortgage].) Theref ore, appellants have failed to show that respondents furnished any info rmation that they knew or reasonably should have known was incomplete or inaccurate. (See Civ. Code, § 1785.25, subd. (a).)
6. Preliminary Restraining Order and Injunctive Claims For
Relief In their sixth cause of action, appellants as sert claims for a preliminary restraining order, a temporary injunction, and a permanent injunction. “Injunc tive relief is a remedy and not, in itself, a cause of action, and a cause of action must exist before injunctive relief may be granted.” ( Shell Oil Co. v. Richter (1942) 52 Cal.App.2d 164, 168.) Therefore, injunctive relief cannot be issued “if the underlying cause of action is not established.” ( City of South Pasadena v. De partment of Transportation (1994) 29 Cal.App.4th 1280, 1293.) As discussed above, appellants have failed to state a cause of action based on their allegations that respondents never received legal title to their mortgage. Therefore, appellants have failed to stat e grounds upon which injunctive relief may be granted. (See
Shell Oil Co.
, supra , 52 Cal.App.2d at p. 168; City of South Pasadena
, supra , 29 Cal.App.4th at p. 1293.) For the reasons stated above, the trial c ourt properly sustained the demurrer to the wrongful credit reporting cause of action.15 III. The Homeowner Bill of Rights Does Not Assist Appellants’ Cause Finally, in their opening brief, appellants contend that regardless of whether they lack standing to challenge the securitization of their mortgage und er the terms of the PSA, they nevertheless have the right to demand respondents prove ownership of their mortgage under the newly enacted HBR. HBR went into effect January 1, 2013. (See Civ. Code, § 2923.4.) According to appellant s, respondents recorded a notice of default on July 12, 2011. As discussed below, th e newly enacted HBR does not grant appellants any additional rights than those that existe d under California’s statutory nonjudicial
foreclosure scheme at the time respondents filed the no tice of default in 2011. “California courts comply with the legal principle that unless there is an express retroactivity provision, a statute will not be applied retroactively unless it is very clear from extrinsic sources that the Legislatur e . . . must have intended a retroactive application.” ( Myers v. Philip Morris Companies, Inc., supra, 28 Cal.4th at p. 841.)
Nowhere in its text does HBR state that it a pplies retroactively. Further, appellants do not point to any portion of the statutory scheme’s text or its legislative history that suggests that the California Legislature inte nded HBR to apply retr oactively. Because HBR went into effect after respondents file d the notice of default in 2011, it does not grant appellants new rights upon appeal. Ther efore, California’s nonjudicial foreclosure statutory scheme as it existed at the time re spondents recorded the notice of default in 2011 applies to this matter.
DISPOSITION The judgment is affirmed. Respon dents are entitled to costs on appeal.

WOODS, Acting P. J.
We concur:

ZELON, J. SEGAL, J.* *Judge of the Los Angeles County Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.16